By Charles Babington and Peter Baker
Washington Post Staff Writers
Wednesday, July 27, 2005
The Bush administration will not give Senate investigators access to the federal tax returns of Supreme Court nominee John G. Roberts Jr., White House and congressional officials said yesterday, a break with precedent that could exacerbate a growing conflict over document disclosure in the confirmation process.
Although nominees to the high court in recent decades were required to provide their three most recent annual tax forms, the administration will neither collect such documents from Roberts nor share them with the Senate Judiciary Committee, the officials said. Instead, the Internal Revenue Service will produce a one-page summary.
The White House yesterday began releasing the first of 75,000 pages of documents stemming from Roberts's service as a lawyer in President Ronald Reagan's administration two decades ago but refused to release papers from his time as deputy solicitor general under President George H.W. Bush from 1989 to 1993. These papers, Bush aides said, concern internal executive branch deliberations that remain privileged.
Senate Democrats and liberal interest groups immediately assailed the decision to withhold the more recent files, sharpening a dispute over the nominee's record.
"A blanket statement that entire groups of documents are off limits is both premature and ill advised," eight Democratic senators on the Judiciary Committee, led by ranking minority member Patrick J. Leahy (Vt.), wrote in a letter to President Bush. The senators attached a list of 35 topics they want to see documents related to, including abortion, civil rights, Bob Jones University, death-squad investigations and school prayer.
White House press secretary Scott McClellan dismissed the requests as part of a political strategy outlined in media reports even before Roberts was nominated. "I hope Senator Leahy is not trying to demand documents that the president has not even seen as part of their lines of attack against the president," McClellan said.
The mushrooming fight over documents represents the first battleground in the confirmation struggle since Bush chose Roberts, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, last week to replace retiring Justice Sandra Day O'Connor. With Roberts's legal credentials not disputed and his views on the most sensitive issues facing the court hard to pin down, Democrats have chosen for now to make the issue of document disclosure their focus -- hoping to find ammunition to derail the nomination or to wage a public battle over the administration's refusal to turn over files.
"This is really part of the phenomenon of interest-group politics and the idea that part of the role of the confirmation process is to vet the ideology of the nominee," said John Anthony Maltese, author of "The Selling of Supreme Court Nominees" and a University of Georgia professor.
"The only reason I can assume some members would be trying to seek these kinds of documents would be to get something embarrassing or awkward, or that would allow them to paint Roberts as extreme on some issue."
Documents proved crucial to earlier debates. "Documents have played a role in scuttling nominations and causing problems," said University of Connecticut professor David Alistair Yalof, author of "Pursuit of Justices," another book on the confirmation process.
William H. Rehnquist had to explain a controversial memo at his first confirmation hearings as associate justice in 1971 and again when he was appointed chief justice in 1986. The memo, written when Rehnquist was a clerk to Justice Robert H. Jackson, argued against school desegregation during the 1950s. Rehnquist explained at his hearings that it represented Jackson's opinion, not his own.
During hearings on the nomination of Robert H. Bork in 1987, the Judiciary Committee was given documents relating to his service as solicitor general under President Richard M. Nixon, particularly his participation in the "Saturday Night Massacre" dismissing Watergate prosecutor Archibald Cox.
"The precedents are that you can't go on a fishing expedition, but you can [seek], and many administrations have released specific documents related to specific requests," said Ralph G. Neas, president of the People for the American Way. He was a leading opponent of Bork and is a critic of the Roberts nomination.
Bush advisers yesterday were pressed to explain why documents generated when Roberts was a lawyer in the White House counsel's office are being disclosed but those from his work as a lawyer in the Justice Department's office of the solicitor general are not. McClellan said the difference is that documents from the counsel's office are covered by the Presidential Records Act, which calls for a presumption of disclosure, and those from the solicitor general's office are not.
To protect their deliberations, solicitors general from both Republican and Democratic administrations have opposed the release of internal memos. "If you want to chill robust debate over what government should do, the way to chill it is to disclose it," said C. Boyden Gray, a former White House counsel advising the Bush team on court strategy.
Not all Republicans sounded so sure. Asked why some legal memos could be disclosed and others could not, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said, "That's a weighty question which I would want to research before I answered."
The change in policy on tax returns could fuel the debate. The Bush administration changed the policy in 2001, no longer requiring judicial nominees at any level to provide tax returns. Instead, the IRS performs a "tax check" of the past three years to detect any problems or disclose if investigations were conducted during that period. "The reason we changed it was an effort to reduce the duplicative paperwork and streamline the process," White House spokeswoman Dana M. Perino said yesterday.
The White House did not announce the policy change, and some senior Republicans and Democrats on the Judiciary Committee said yesterday that they were unaware of it. When Democratic staffers learned of the change after queries by The Washington Post, they expressed surprise that the White House would not seek Roberts's tax returns, even if it did not plan to share them with the Senate.
Senate Democrats have suggested to Finance Committee Chairman Charles E. Grassley (R-Iowa), who is authorized to obtain individual tax returns under prescribed circumstances, that he try to obtain Roberts's. Grassley said yesterday that Democratic staffers approached his aides with the idea, but he signaled he was inclined to rebuff them. "From the standpoint of taxes for justices, I don't know that that has ever been done before," Grassley said.