The L.A. Times has published on its web site a story about the White House’s refusal to release privileged documents relating to John Roberts’s time as a Deputy U.S. Solicitor General. The article sets the tone with this paragraph:
The White House today released thousands of pages of documents on Supreme Court nominee John G. Roberts Jr. that nobody on Capitol Hill requested, but declared off limits all materials from the period in Roberts’s government career that would likely be the most revealing about his political views.
The story outrageously portrays this bogus document issue as genuine, by completely ignoring the massive weight of evidence to the contrary. For example, the editors allow this statement by Sen. Ted Kennedy to go completely unchallenged in the article:
“In my 42 years on the Judiciary Committee, we have received many internal Justice Department documents at least as sensitive as these, even for confirmation proceedings that don’t come close to the importance of a Supreme Court appointment,” said Sen. Edward Kennedy (D-Mass.). “There is no privilege, there is no rule, there is no logic that would bar us from getting these documents.”
Disingenuous doesn’t even begin to describe this.
Let’s start with the portion of Kennedy’s statement that holds that there is “no privilege” that would bar the Senate from obtaining memos by a Deputy Solicitor General. Recently, my friend William Dyer concisely demolished an identical claim by Sen. Pat Leahy as “a preposterous and incorrect statement of the law.” Mr. Dyer has the case citations to back up his statement. Mr. Dyer’s total refutation of Leahy’s comment is a conclusive rebuttal to Sen. Kennedy’s identical claim that there is “no privilege” or “rule” that bars the release of internal memos to the Solicitor General.
Equally ridiculous is Sen. Kennedy’s claim that there is “no logic” to the claim that such memos should remain confidential. The reasons to keep such memos confidential were set forth in a February 12, 2003 letter from Alberto Gonzales to Senators Daschle (remember him?) and Leahy, regarding the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals. (To read the letter, go here and scroll down, or search for “February 12, 2003” — the letter is fairly far down the page.) Gonzales’s letter explained:
You have renewed your request for Solicitor General memos authored by Mr. Estrada. But every living former Solicitor General signed a joint letter to the Senate opposing your request. The letter was signed by Democrats Archibald Cox, Walter Dellinger, Drew Days, and Seth Waxman. They stated: “Any 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 — a cost that also would be borne by Congress itself. . . . Although we profoundly respect the Senate’s duty to evaluate Mr. Estrada’s fitness for the federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process.
Gonzales made it clear that a wholesale disclosure of internal Justice Department memoranda would be wholly unprecedented:
The history of Senate confirmations of nominees who had previously worked in the Department of Justice makes clear that an unfair double standard is being applied to Miguel Estrada’s nomination. Since the beginning of the Carter Administration in 1977, the Senate has approved 67 United States Court of Appeals nominees who previously had worked in the Department of Justice. Of those 67 nominees, 38 had no prior judicial experience, like Miguel Estrada. The Department of Justice’s review of those nomination records disclosed that in none of those cases did the Department of Justice produce internal deliberative materials created by the Department. In fact, the Department’s review disclosed that the Senate did not even request such materials for a single one of these 67 nominees.
Of this group of 67 nominees, seven were nominees who had worked as a Deputy Solicitor General or Assistant to the Solicitor General. These seven nominees, nominated by Presidents of each party and confirmed by Senates controlled by each party, included Samuel Alito, Danny Boggs, William Bryson, Frank Easterbrook, Daniel Friedman, Richard Posner, and Raymond Randolph.
Today’s L.A. Times story suggests that a different precedent was set during the confirmation hearings for Robert Bork:
Democrats noted that the Reagan administration provided a number of internal Justice Department documents during nomination proceedings for Robert Bork in 1987, including material from the time he served in the solicitor general’s office.
But Gonzales’s letter regarding Estrada addressed — and convincingly rejected — that exact argument:
The five isolated historical examples you have cited do not support your current request. In each of those five cases, the Committee made a targeted request for specific information primarily related to allegations of misconduct or malfeasance identified by the Committee. Even in those isolated cases, the vast majority of deliberative memoranda written by those nominees were neither requested nor produced. With respect to Judge Bork’s nomination, for example, the Committee received access to certain particular memoranda (many related to Judge Bork’s involvement in Watergate-related issues). The vast majority of memoranda authored by Judge Bork were never received.
None of this information is included in the article. Readers are left with the impression that Democrats are asking for nothing more today than was already provided in the confirmation hearings for Judge Bork. As Gonzales’s letter makes clear, this impression is misleading in the extreme.
With respect to Miguel Estrada, Gonzales suggested numerous alternatives to reviewing confidential internal memoranda, such as: reviewing written briefs and oral arguments; interviewing Estrada’s former supervisors; interviewing those who served alongside Estrada; and examining Estrada’s written performance reviews.
As far as I know, similar avenues are available to Senators who wish to examine John Roberts’s record.
Not that the L.A. Times mentions that, either.
I am assuming that today’s L.A. Times story on this issue is just a hasty first draft. Surely the version that runs in tomorrow’s paper will present some of the arguments I just went through.
Am I being too naive?
I guess we’ll see.
UPDATE: Mr. Dyer has more here on the documents issue generally. He is proving to be a valuable voice in this confirmation fight, as he was in the 2004 presidential election. It’s good to see him actively blogging again.
UPDATE x2: See the UPDATE to this post for a surprising about-face by Walter Dellinger, and a refutation of his arguments.