Walter Dellinger, who headed the Office of Legal Counsel and served as acting head of the Office of the Solicitor General in the Clinton administration, is a very bright man. As more fully discussed here, Dellinger was one of the seven former heads of the SG’s Office–four Democrats and three Republicans–who in 2002 sent a letter to Senator Leahy protesting Leahy’s demand for SG Office documents relating to Miguel Estrada, whose nomination to the D.C. Circuit was then pending. In that letter, Dellinger and company “attest[ed] to the vital importance of candor and confidentiality in the Solicitor General’s decisionmaking process” and pointed out that the “unbridled, open exchange of ideas . . . simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure.” The letter further stated that “[a]ny attempt to intrude into the Office’s highly privileged deliberations would come at the cost of the Solicitor General’s ability to defend vigorously the United States’ litigation interests.”
Dellinger, it turns out, now has a very different position on SG Office documents relating to John Roberts. In Dellinger’s words (from his op-ed Washington Post):
“Unlike Estrada, Roberts was writing memos not as a civil service lawyer but as a senior political appointee in a policymaking position, and the judgeship at stake isn’t any federal judgeship but the Supreme Court itself. These factors and the announced release of volumes of earlier memos to the White House counsel–undistinguishable as a matter of law from memos to the solicitor general–suggest that the memos to the latter will be made public as well.
Are Dellinger’s factors persuasive? I don’t think so.
First, the fact that Roberts was a “senior political appointee in a policymaking position” makes the public’s interest in not chilling the candor of communications relating to governmental decisionmaking stronger, not weaker, than in Estrada’s case. Confidentiality is not, as Dellinger’s op-ed would seem to suggest, some sort of civil-service protection for government employees. It is instead designed to protect the decisionmaking process. As Dellinger’s 2002 letter correctly states, “High-level decisionmaking requires candor, and candor in turn requires confidentiality.”
Second, apart from the fact that I’ve never before heard anyone call a judgeship on the D.C. Circuit just “any federal judgeship,” I don’t see the relevance of the fact that Roberts’s nomination is to the Supreme Court. Virtually every lawyer in the SG’s Office, I suspect, has imagined himself a future judge or Supreme Court justice, but no one of course knows what the future holds at the time he’s working in that office. You sacrifice the long-term interest in ensuring an environment that promotes candor if you’re willing to disclose records on someone who later becomes a Supreme Court nominee. Besides, there are ample alternative means–interviewing career deputies and attorneys who worked with Roberts–for satisfying any legitimate interest in determining Roberts’s fitness.
Dellinger is a wordsmith, and his second sentence quoted above is, strictly speaking, a prediction that the SG documents “will be made public” rather than an argument that they should be. His prediction may well prove to be right–for the sake of the interests cited in his 2002 letter, I hope not–but his grounds for distinguishing Roberts’s records from Estrada’s aren’t convincing.