In a letter sent yesterday to Attorney General Alberto R. Gonzales, the eight Democratic senators on the Judiciary Committee argued that Roberts's memos from that time frame are of "unparalleled relevance" to the Senate's constitutionally mandated duty to evaluate his fitness to serve on the Supreme Court. They chastised the Bush administration for what they called a "wholly inadequate response" to repeated requests to turn them over.
The documents, they argued, are all the more important now that Roberts has been chosen as a candidate to head the court, replacing the late Chief Justice William H. Rehnquist instead of retiring Associate Justice Sandra Day O'Connor.
When Rehnquist was nominated to become chief justice, some documents from his stint in the Justice Department that normally would have been shielded by attorney-client privilege were given to the Senate. When former solicitor general Robert H. Bork was nominated to the Supreme Court in 1987, he, too, turned over some of the same kind of material.
"President Bush should provide the information . . . rather than hiding behind a privilege that doesn't exist and encouraging Roberts to not answer questions," said Sen. Edward M. Kennedy (D-Mass.). "The American people deserve to know who John Roberts is and where he stands on the vital issues before the country."
But with Republicans in firm control of the Senate and Judiciary Committee Chairman Arlen Specter (R-Pa.) opposed to the request, all Democrats can do is urge the White House to reconsider.
While tens of thousands of pages from Roberts's days as a lawyer in the Reagan administration have been obtained under public records requests, the White House has said Roberts's memos from his tenure as principal deputy solicitor general are rightfully exempt. Administration officials argue that they are protecting an important principle: Lawyers in the solicitor general's office must be able to freely exchange ideas in cases in which they represent the American public, they say.
That position was supported by seven former solicitors general of both parties, who signed a letter objecting to a Senate request for similar memos written by Miguel A. Estrada, a Bush nominee to a federal appeals court slot.
Former solicitor general Walter E. Dellinger III, a Clinton appointee who co-signed the letter, said yesterday that there are key differences between Roberts and Estrada, not the least of which is that Roberts was a top political appointee to the solicitor general's office, while Estrada was not.
"There are legitimate arguments on both sides," Dellinger said. "But the fact that this is the Supreme Court makes it a closer question, although it is one I haven't taken a position on."
Former solicitor general Theodore B. Olson, who served under President George H.W. Bush, was more forceful. If members of Congress were asked to turn over private internal memos, they would be outraged, he said. Memos by solicitors general contain information that is private for a reason, he said, such as criticism of various judges or outlines of the weaknesses in the government's case.
"You can't get the kind of frank, confidential advice that you need if someone knows that it is going to eventually be made public," he said.
