Liberal and environmental groups that have done battle with the Bush administration over the past five years renewed their demand Friday that the Bush administration turn over memoranda which Supreme Court nominee John Roberts wrote while serving in his only policy-making executive branch job, deputy solicitor general in the Justice Department from 1989 to 1992.
But their demand seemed a futile effort.
The Bush administration won't release those memos, Senate Judiciary Committee chairman Sen. Arlen Specter, R-Pa., supports that decision, and no amount of pressure will likely change their minds.
The memos, said Nan Aron, president of the Alliance for Justice, “could potentially say a huge amount about Judge Roberts’s views about important issues and areas of the law and shed much-needed light on how Judge Roberts might approach his job as Supreme Court justice, if confirmed.”
Something to hide?
Aron argued that the Bush administration’s refusal to turn over the memoranda “creates the impression that there is something to hide.”
David Bookbinder, an attorney with the Sierra Club said the Bush administration’s refusal to surrender the documents raised the possibility that Roberts made statements in them that were “so outrageous that they’d persuade even a Republican-dominated Senate to reject him.”
Aron said that in his job as deputy solicitor general, Roberts stood “at the influential intersection of law and policy, often deciding whether and how much the government should weigh in on the most sensitive cases before the Supreme Court. He had the opportunity to put his own imprimatur on the government’s most visible legal policies.”
As deputy solicitor general, Roberts had the responsibility for helping to decide what cases the United States would seek Supreme Court review of, and in which cases the United States would file an amicus (friend of the court) brief, which usually carry great weight with the justices. As deputy solicitor general, Roberts also argued 18 times before the justices.
Specter opposes release of memos
Specter has already made it clear he opposes turning over the deputy solicitor general documents.
“The Administration is not wrong in declining to provide documents from Judge Roberts’ tenure in the Solicitor General’s Office,” Specter wrote on Aug. 10 to Sen. Patrick Leahy, D-Vermont, the senior Democrat on the Judiciary Committee.
The memos which made up the decision-making process of the Bush administration or of any administration must be shielded from congressional scrutiny, Specter argued, so as “to avoid the chilling effect or potentially paralyzing effect on lawyers in the Solicitor General’s office who would understandably be reluctant or unwilling to give their candid views if they thought they would later be subject to public scrutiny.”
He added, “This issue transcends partisan politics… because the shoe may be on the other foot with Republicans seeking similar information in the future.”
Justice Department spokesman John Nowacki said Thursday, “As seven former Solicitors General have stated previously, the confidentiality that enables the Solicitor General's office to vigorously defend the United States' interests should not be sacrificed as a part of the confirmation process.”
He said senators had received over 50,000 pages of documents relating to Roberts’s work in the Reagan administration, “which is an overwhelming amount of material by any measure.”
The treasure trove that Aron and other liberal advocates are seeking is the cache of memos which would show the quality of Roberts’s judicial mind, especially as applied to:
- The extent to which the federal government should use civil rights laws to protect women entering abortion clinics from harassment and violence.
- The ability of private citizens to file suits under federal environmental laws.
- The ability of private citizens in cases of alleged sexual harassment to file lawsuits for damages under a statute forbidding sex discrimination in federally–funded schools.
As deputy solicitor general, Roberts handled cases dealing with all these questions.
Internal decision-making process
Bookbinder cited a 1992 case involving regulation of building houses on beaches and sand dunes on the South Carolina coast. Several federal agencies were at odds with each other over what position the first Bush administration should take before the Supreme Court in that case.
“At the center of that and deciding whose views should prevail and why was John Roberts,” Bookbinder said. “We have the final product, but we don’t know… how John Roberts felt about the constitutional issue. It should be revealed by the documents.”
Having verbatim statements that Roberts made in the memos from the 1989-1993 period would give senators on the Judiciary Committee a more recent baseline than his early 1980s statements to use as a starting point for asking him, “Do you believe now what you thought then? If not, how have you changed your thinking?”
“As any litigator will tell you, the best evidence of what someone believed and thought is not what they provide at the time they are under scrutiny… but through contemporaneous documents and statements they made,” said Seth Rosenthal the Legal Director for the Alliance for Justice.
Will Democrats filibuster?
The only pending question is whether Democratic senators will decide to launch a filibuster — extended debate to block any vote on Roberts — as a means of pressuring the administration to surrender the documents.
Fourteen senators, seven from each party, signed a pledge on May 23 to not join a filibuster of a judicial nominee except under undefined “extraordinary circumstances.”
If Democrats began a filibuster and then were unable to round up the 41 votes needed to sustain it, they would demonstrate the weakness of their hand in the Senate.
The Roberts documents released so far from the Reagan Presidential Library, covering his years as an assistant to Attorney General William French Smith and as associate White House counsel for Reagan, contain occasional glints of the thinking of Roberts as a young man 20 or more years ago.
For example in 1985, in a memo to his boss, White House Counsel Fred Fielding, Roberts said that a Supreme Court decision banning a moment of silent reflection in public schools “seems indefensible.”
But in some cases the documents already released are purely trivial, for example, a Roberts letter from 1985 responding to a woman in Covina, Calif. who complained to President Reagan about her neighbor improperly displaying the American flag.
If liberal advocates are unsuccessful in blocking Roberts from ascending to the Supreme Court, it will be the first time since 1991 that a conservative justice will have been confirmed.