Bench Memos

Scorched-Earth Tactics

Charles Schumer, the second-most-junior Democrat member of the Senate Judiciary Committee, has already signaled his intention to launch scorched-earth tactics to thwart or stall the Senate’s confirmation of John Roberts to the Supreme Court. In particular, Schumer can be expected to press the Department of Justice to disclose Roberts’s confidential legal memos from his time in the Office of the Solicitor General.

Senate Democrats made this same demand in connection with President Bush’s nomination of Miguel Estrada to a D.C. Circuit seat. In response to that demand, all seven living former heads of the SG’s Office–Seth Waxman, Walter Dellinger, Drew Days, Ken Starr, Charles Fried, Robert Bork, and Archibald Cox–sent a letter to Senator Leahy (then chairman of the Senate Judiciary Committee) explaining why that demand was improper.

This remarkable bipartisan group of highly respected lawyers “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.”

The Justice Department also sent Chairman Leahy a long letter that explained how the Senate Democrats’ request would violate the separation of powers and run roughshod over established executive-branch privileges. The DOJ letter also pointed out since 1977 the Senate had approved 67 nominees to the U.S. Courts of Appeals who had had previous DOJ experience (including eight who had served in the SG’s office) and that the Democrats’ request was unprecedented.

Curiously, the Senate Democrats were so focused on preventing a Hispanic from being confirmed to the D.C. Circuit that they did not even notice the incongruity of their not making the same illegitimate request with respect to the then-pending nomination of Roberts to the D.C. Circuit.

If Schumer and other Senate Democrats demand any materials from the SG’s office in connection with Roberts’s nomination, that will be a clear sign that there is no principle of law or practice that Democrats will not trample in order to try to stop this nomination. And why stop with the SG’s office? If U.S. senators are going to violate separation-of-powers principles, why not demand that Chief Justice Rehnquist turn over his files from the year that Roberts clerked for him? And if established principles of privilege mean nothing, why not invade the spousal-communication privilege and cross-examine Roberts and his wife as to discussions they’ve had with each other?

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