THE REQUEST BY Democratic senators to see memos written by Supreme Court nominee John G. Roberts Jr. during his service in the solicitor general's office requires a difficult balancing of legitimate interests: the executive branch's need for confidentiality against a full and informed Senate confirmation proceeding. The request is more measured than the far-reaching demand for solicitor general memos during the nomination of Miguel A. Estrada to the U.S. Court of Appeals for the D.C. Circuit earlier in the Bush administration. It should not simply be defied. But neither is the administration wrong to try to protect internal deliberations within one of the government's most critical legal offices. Accommodation should be possible, provided it is sought in good faith by both sides.
The demand for memos in Mr. Estrada's case was irresponsible because he was a line attorney in the office; senators had demanded essentially all of his written work. It was an unlimited fishing expedition. Had the administration complied, the free give-and-take within the solicitor general's office would have been poisoned. That is why all living solicitors general of both parties opposed the request.
The Roberts case is different. Judge Roberts was not a line attorney but the political deputy solicitor general -- and administrations have at times chosen to turn over confidential work product when political appointees are nominated to the bench, including in the cases of Chief Justice William H. Rehnquist and the nomination of Robert H. Bork. A privilege, after all, can be waived. Unlike the case of Mr. Estrada, Democrats have not sought the entire body of Judge Roberts's work but only his memos in 16 cases that they believe might shed light on his legal philosophy. The executive branch has already released mounds of material of indistinguishable sensitivity -- including Judge Roberts's memos to the attorney general early in the Reagan administration. This material was slated under statute and past policy decisions to become public for reasons having nothing to do with the nomination. But at least to some degree it complicates the administration's contention that it can contemplate no disclosure of old attorney-client material.
Still, the administration's concerns are not trivial. Disclosure of internal documents in judicial nominations has typically occurred in response to accusations of impropriety; there is no suggestion of misconduct in this case. To be sure, turning over the material could establish the precedent that confidential attorney-client material becomes fair game whenever senators are curious to know what a particular nominee thought on a particular issue. The risk that this could chill the willingness of line attorneys to give their candid views is a serious concern.
There is a possible solution that the White House and Senate Democrats should consider. It is not clear that Judge Roberts actually worked on all of the 16 designated cases. Even where he did, deputy solicitors general often don't write detailed memos but frequently annotate case memos written by career assistants, according to former officials of the office. In many of the cases at issue, there may be little or no written work product to examine; and what there is may be distinctly uninformative. An executive privilege dust-up over nothing would be pointless.
The administration should, therefore, begin by specifying what, if any, responsive material actually exists in these cases. This step might narrow the dispute to just a few documents. If those documents seem important to the assessment of Judge Roberts, a procedure could be crafted to allow for examination by senators who wish to satisfy themselves that they contain nothing disqualifying.