Key turf war: control of nominee's old papers

Dispute over access to documents has become an increasingly common feature of the Senate confirmation process for top US officials.

From William H. Rehnquist's nomination for the Supreme Court in 1971, through this year's battle over UN ambassador-designee John Bolton, to the current high-court nomination of John G. Roberts, Washington has continued to battle over the extent to which executive privilege protects against disclosure of papers produced on government time.

The disputes persist in part because they are a win-win strategy for those pursuing documents. If the papers in question are produced, they can be scoured for controversial nuggets. If they are kept confidential, the White House may appear secretive, or shifty.

"It possibly creates a sense they're hiding something," says Ohio State University law professor David Goldberger.

In the case of Judge Roberts, the White House this week released 14,000 pages of documents that cover the period from September 1981 to November 1982, when he was a young attorney working for Reagan-era Attorney General William French Smith.

In addition, the Ronald Reagan Presidential Library has made public some 4,000 more pages of files that Roberts accumulated after he moved to the White House Counsel's Office in late 1982.

A random reading of excerpts from these papers conveys a sense that their author was thorough, intelligent, and demonstratively conservative. He quotes approvingly from the writings of then-law professor Antonin Scalia, for instance. He argues against court-ordered busing, saying that its elimination would not increase discrimination.

"We do not believe busing is necessary," wrote the young Roberts.

But this flood of memos is not all the paper Roberts has produced while in Uncle Sam's employ.

From 1989 until 1993, Roberts worked as deputy solicitor general during the administration of the President George H.W. Bush.

The solicitor general's office argues executive branch positions before the Supreme Court. The sensitivity of this task, and the internal papers produced in support of it, have led the current White House to declare them protected by attorney-client privilege.

Thus those files will remain closed, say Bush officials.

"I think that if you were to make this information available publicly, it would have a chilling effect on the ability of the solicitor generals to receive candid, honest, and thorough advice," said White House spokesman Scott McClellan on July 26.

Democratic senators urged release of the documents, calling the withholding "premature and ill-advised" in a letter to President Bush.

Some critics of the Roberts nomination were even harsher. Ralph Neas, president of People For the American Way, accused the White House of slow-rolling the release of Roberts's documents so that the Senate will have insufficient time to examine them before confirmation hearings.

"What questions do they want to avoid?" asked Mr. Neas.

Executive privilege does indeed exist, per a series of US court rulings of recent decades. But its precise extent remains unclear.

In 1972, the Nixon White House successfully asserted executive privilege to prevent the release of papers written by Supreme Court nominee William Rehnquist in his position as a deputy attorney general.

But in 1986, when President Reagan nominated Rehnquist for a promotion to chief justice, the White House eventually backed down, and voluntarily released some of the disputed memos.

More recently, the Bush White House refused to release memos written for the solicitor general's office by Miguel Estrada after Mr. Estrada was nominated for the D.C. Circuit of the US Court of Appeals.

Seven former solicitors general, including three who served Democratic presidents, signed a letter saying the memos in question were "highly sensitive" and should be withheld. But Estrada became caught up in the larger Senate struggle over judicial nominations. He eventually withdrew from consideration in 2003, after a Democratic filibuster blocked his path to the court.

Defenders of the concept of executive privilege say it is necessary to protect the integrity of internal debate. Lawyers might not give unvarnished advice in the solicitor general's office if they thought it might later become public. C. Boyden Gray, White House counsel in the first Bush administration, likens these memos to a journalist's preliminary drafts.

Senate Democrats pursuing the Roberts documents say they are necessary for senators to properly weigh the true opinions of a nominee for a life appointment to the most powerful court in the nation.

In practice, courts decide executive privilege claims on a case-by-case basis. Much would depend on the nature of the requested documents, says Professor Goldberger.

If the papers had already been freely provided to others, such as friends outside the administration, they might not be exempt from disclosure. But that doesn't seem to be the case with the Roberts papers. If it came to a legal struggle, Goldberger doubts the requesters would prevail.

"I'd be surprised if many of the documents that [Senate Democrats] want are documents completely free of any privilege claim whatsoever," he says.