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Bench Memos

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The Call for More Documents



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As the pressure groups on the Left carry out their pre-planned strategy to try to build opposition to Judge Roberts through procedural objections aimed at the White House, rather than substantive objections aimed at the nominee himself, it is worth bearing in mind two important points about the whole document release issue:

1. There are more high-level, highly sensitive internal memoranda available regarding Judge Roberts’ executive branch service than there have probably been about any other nominee in history. Literally tens of thousands of pages have been released from John Roberts’ tenure as Associate Counsel to President Reagan and Counselor to the Attorney General. These documents contain remarkably candid and unvarnished expressions of opinion on subjects both legal and political by the nominee. They provide a better window into the nominee’s thinking — at least when he was in his 20s — than reams of dry and carefully-edited law review articles would have. Ordinarily, memoranda written by senior aides to the Attorney General or to the White House Counsel would never see the light of day in a confirmation hearing. They are virtually all protected by executive privilege, and all implicate the important interests underlying that privilege. (Does anyone believe, for example, that the Associate Counsels in the White House right now are not writing their memoranda to Harriet Miers differently than they would have just several short months ago?) Yet, essentially through historical accident, far more of this material is available regarding Judge Roberts than has ever been available before. The Reagan Library had already made public many of Roberts’ Associate Counsel files under the Presidential Records Act before his nomination, which made it untenable for the White House to withhold the rest. And the Clinton Administration unilaterally waived privilege with respect to the Reagan Justice Department records. As a result, the Senate and the public now have in their hands an enormous volume of material that they would otherwise be complaining bitterly about not being able to see.

2. The Deputy Solicitor General records — the only ones not being released — are likely to be the least illuminating of all the records from Roberts’ previous stints in government service. That is because the Deputy SG is, by and large, a reader of memos, not a writer of them. Roberts’ SG files probably contain little else besides draft briefs, perhaps with his handwritten comments on them, and appeal memos and other documents written by others and received by him. It is utterly predictable that the groups and the Roberts critics are going to claim that the really important documents are whatever documents they haven’t seen, but it is also utterly wrong. The SG files will tell us far less about Roberts’ own views, because they will contain far less of his own writing. And what writing there is will be focused on highly technical legal issues and arguments, rather than the sorts of salacious political, policy, and personal tidbits that have been exciting the press in the recent archives releases. The fact is that the juiciest stuff by far is almost certainly now in the public domain.

It is also worth noting that whatever John Roberts wrote on the appeal recommendations and other memos forwarded by career assistants would have been written directly on those memoranda, which were prepared by career staff. Even if one were to accept Ted Kennedy’s and Walter Dellinger’s recent arguments that there should be a different rule for the two political appointees in the SG’s office than for the career lawyers — and, in my view, the argument is completely wrong, as the function of the “political” deputy is precisely the same as that of the career deputies — there would be no practical way to separate Roberts’ handwritten notations from the writings that even Senator Kennedy and Dellinger appear to agree should never be disclosed.



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