Senate Democrats yesterday continued to press for legal memos written by John G. Roberts Jr. when he was a high-ranking appointee in the first Bush administration, a move that the White House denounced as a political ploy to try to derail Roberts's nomination to the Supreme Court.
The back-and-forth marks an escalation in the battle between the administration and Democrats over how much information the Senate needs to adequately assess Roberts's record -- a question that will be at the heart of next month's confirmation hearings.
In a letter to Attorney General Alberto R. Gonzales, the eight Democratic members of the Senate Judiciary Committee urged the administration to reconsider its refusal to turn over records from Roberts's 1989-1993 tenure in the solicitor general's office, where he held the number two slot and argued cases on behalf of the government before the Supreme Court.
Disputes over documents have derailed previous nominees. President Bush allowed appellate court nominee Miguel A. Estrada to withdraw rather than turn over papers from his service in the solicitor general's office. While Democrats have yet to make clear how far they are willing to go in this current fight, they requested a meeting with Gonzales to resolve the impasse.
Gonzales stands by the administration's position but will review the Democrats' request, said spokeswoman Tasia Scolinos.
White House officials argue that Roberts's records from the solicitor general's office must remain confidential to protect the free flow of ideas necessary to defend the government's litigation positions. The administration's stance has been backed by former solicitors general of both parties.
White House spokesman Steve Schmidt said yesterday that Democrats "are on a fishing expedition" that "echoes a political strategy" hatched even before Bush named Roberts. Before the nomination, Democrats had signaled that one likely line of attack would be to assert that the Senate has not received sufficient documents about the nominee.
But Democrats say they need the records to adequately discharge their constitutional duty to assess the president's nominee before confirming him to a lifetime appointment on the nation's highest court. They point to a variety of cases in arguing that the attorney-client privilege cited by the White House does not apply to documents requested by Congress.
Roberts has been a judge on the U.S. Court of Appeals for the District of Columbia Circuit for two years. In his confirmation hearings for that position, he asserted that the stances he took on behalf of the solicitor general's office -- such as arguing that Roe v. Wade should be overturned -- did not necessarily reflect his own views.
"The Judiciary Committee is entitled to a complete understanding of Judge Robert's role," the Democrats wrote. But their cause suffered a setback earlier this week when Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) sided with the White House.
Specter had helped work out a compromise in 1986 in a similar confirmation dispute over Chief Justice William H. Rehnquist's papers from his time as a lawyer in the Justice Department. The difference, Specter said yesterday, is that the Senate in 1986 wanted to see the documents because of allegations of misconduct.
Specter noted that the administration has already agreed to turn over more than 50,000 pages of documents from Roberts's tenure in the Reagan administration as special assistant to the attorney general and as an associate counsel to the president. The memos released so far include discourses on congressional authority to strip the Supreme Court of jurisdiction over certain matters, as well as Roberts's views on civil rights and the right to privacy.
"They can ask him what his views are on those subjects, and whether they represent his views today," Specter said. "They've got a lot of paper to confront him with."
Ultimately, said former Nixon White House counsel John W. Dean, whether the White House or Democrats prevail comes down to politics.
"The Senate clearly has a constitutional duty to look at this," said Dean, who has written a book critical of the Bush administration for what he sees as its penchant for secrecy. "But it'll be who can present the best case to the public: The Democrats can't look like they're obstructionist, and the president can't look like he's hiding something."