An Aug. 6 article about documents relating to Supreme Court nominee John G. Roberts Jr. incorrectly said he argued a case before the Supreme Court that called for overturning Roe v. Wade. The White House said Roberts signed the brief but did not present the oral argument. (Published 8/7/2005)
The Justice Department refused yesterday to turn over documents about Supreme Court nominee John G. Roberts Jr. that Senate Democrats have demanded, escalating the most serious conflict in a confirmation process that has been more placid than either side had predicted.
The attorney general's office said in four-page letters to each of the eight Democrats on the Judiciary Committee that it is "simply contrary to the public interest" to release certain records from Roberts's service in the solicitor general's office, which argues cases before the Supreme Court on behalf of the executive branch.
"For the Solicitor General's office to perform its public service effectively, the internal deliberations of the office must remain confidential," each letter said. It added that "the public interest in the office's zealous representation of the interests of the United States would be compromised by a breach of that confidentiality."
Democrats reacted angrily, accusing President Bush and his subordinates of "stonewalling" legitimate demands for information that would help them understand the nominee's legal philosophy. But they acknowledged that they see no immediate avenue of appeal, even as they vowed to find other ways to illuminate Roberts's tenure at the Justice Department from 1989 to 1993.
Roberts was principal deputy solicitor general under President George H.W. Bush and went before the justices to argue the government's position numerous times, including in a case that urged the Supreme Court to overturn Roe v. Wade, which established a constitutional right to abortion.
Democrats had asked for memos and other documents related to 16 cases involving such sensitive issues as abortion, civil rights, environmental protection and freedom of speech.
Roberts has said his personal views cannot fairly be inferred from a position he argued on behalf of an administration. This prodded Democrats to seek documents that might have revealed his opinions about the positions he took in internal deliberations about the merits of different arguments, and whether the government should intervene.
Strategists in both parties predicted that Democrats now will try to make the documents a central issue in the Judiciary Committee's televised confirmation hearings for Roberts, which are scheduled to begin Sept. 6, the day after Labor Day.
Democratic Senate aides acknowledged that the Roberts record has given their party little ammunition. This leaves the fight for documents as a linchpin of the opposition strategy because it allows lawmakers to criticize the administration without attacking the judge personally, which could backfire if voters come to view Roberts as an ideologically mainstream jurist.
Sen. Patrick J. Leahy (Vt.), the committee's top Democrat, said the rejection is part of an administration pattern of "stonewalling the Senate and the public" and asserted that his party's request is "a carefully crafted and narrow request for a few documents that might illuminate Judge Roberts's views on important issues of concern to all Americans -- civil rights, privacy and access to justice."
"With fanfare and photo ops, the administration has delivered documents that we have not asked for, which provide less insight into Judge Roberts's views and were already available to the Senate," Leahy said in a statement. "But they will not provide the records that are the most meaningful as the Senate prepares to make this important decision on behalf of the American people."
In what the administration called an effort to partly comply with the Democrats' request, officials last night released a stack of records several feet high. But the release almost entirely consisted of legal briefs that are already readily available in libraries and online databases.
In the past, administrations had at times chosen to turn over confidential work records when political appointees were nominated to the bench, including during the confirmation process for Robert H. Bork, whose nomination to the Supreme Court by President Ronald Reagan was defeated by the Senate.
Sen. Charles E. Schumer (N.Y.), one of the committee's most vocal Democrats, said the administration decision will "make our job of learning Judge Roberts' judicial philosophy and legal reasoning so much the harder, and puts a special onus on fair and thorough hearings where Judge Roberts answers questions fully and unambiguously."
That is another possible signal of future clashes between Senate Democrats and the administration because the White House and Republican senators have said Roberts should not have to answer questions about his personal legal or political views.
The White House defended the pace and quantity of the release of documents, saying in a letter to Schumer yesterday that the administration was providing 65,000 pages of documents to the committee, including certain records from Roberts's days in the White House counsel's office under President Reagan.
The letter said some -- but not all -- of the documents that Schumer had requested from that period will be produced by Aug. 22 -- a little more than two weeks before the hearings are scheduled to begin.
The letter, from legislative affairs director Candida Wolff, said the material being released "will enable the Committee to engage in full, fair, and prompt consideration of Judge Roberts' nomination."
Sen. Edward M. Kennedy (D-Mass.) said in a letter to Bush that White House officials are dragging their feet in producing documents they had agreed to furnish, while engaging in "the leaking of highly selective documents" that are "intended to paint a better picture of the nominee." On Thursday, the administration selectively released to news organizations two Reagan-era documents, but so far has not acted on requests for thousands of other documents.
Among the documents produced so far was a curiosity -- a memo by the young Roberts arguing against lifetime appointments for the federal judiciary, coming to light more than two decades later as he now holds one such lifetime post as a federal appeals judge and hopes to hold another on the high court.
Roberts wrote in a memo on Oct. 3, 1983, to White House counsel Fred F. Fielding that the Constitution "adopted life tenure at a time when people simply did not live as long as they do now," and he argued that limiting the terms of federal judges would ensure a fresh supply of talent and guard against "ivory tower" elitism, according to an Associated Press report.