Roberts' Record

[StPetersburgHoya (Inactive)]

The White House is refusing to hand over the complete record of Supreme Court nominee John Roberts. It is congress' right to have whatever information it deems necessary in order to make a decision. Why does the White House want to risk provoking a showdown with congress or forcing congress to use the power of a congressional subpoena?

The White House has stated the fact that Mr. Roberts served as assistant Solicitor General and that his memos and other documents are protected by attorney-client privilege. This is a very strong argument. If former nominee Robert Bork's memos and documents produced during his time at the Solicitor General's office had not been released during his nomination process, clearly setting a precedent on this issue.

What is the Bush administration trying to hide about Roberts?

[showcase]

My guess would be any memos regarding the preparation of the brief in Rust in which the Administration argued that Roe was wrongly decided and should be overturned. If Roberts made a forceful argument that this should be the official position of the Administration (even if it was not necessary to make the argument they did in that case), what looks to be a cake-walk of a confirmation hearing could become quite contentious.

Of course, it's equally plausible that no such memo exists, and that the Administration is just standing on principle.

[StPetersburgHoya (Inactive)]

Very true. This is also when the US had some very interesting rendition cases heard before SCOTUS if I'm not mistaken. I wonder if he helped write those briefs and if so what he thinks of the current rendition policies of the United States. I forget the name of the case but it dealt with the FBI's ability to rend a drug criminal whose product was being sold in the United States from Mexico for trial. The opinion as I remember it indicated that it was ok to rend someone for the purposes of trial - but it remains unclear how the court would view rendition of a suspected terrorist for interrogation to a third-party country with no judicial oversight or any realistic hope of that person ever being brought to trial.

[kchoya]

stpetersburghoya said:

It is congress' right to have whatever information it deems necessary in order to make a decision.

How is it a right to have whatever they demand? I missed that part of the Constitution.

Is this going to be the trend, lets not attack Bolton, Roberts, et al on the merits, let's complain about not getting every single piece of paper ever created.

I've heard they want Roberts' tax returns. How does that make one bit of difference as to how he will rule as a justice?

[StPetersburgHoya (Inactive)]

I think the briefs and memos on how he would argue the law should be interpreted are valuable in descerning how he would rule as a justice.

[EasyEd]

Let's face it, the only issue involved is abortion and related life issues. The Democrats will continue to demand papers until it finds something related to abortion they think they can use to try to block the nomination. Abortion on demand is the "law of the land" only because a group of Supreme Court justices said it is so. Just like other groups of justices said slavery was okay and school segregation was permissible. Other groups of justices reversed those decisions. And, other groups of justices may one day reverse the "abortion on demand" decisions. I fail to see what is wrong with having someone on the Supreme Court that does not pass the abortion litmus test of the liberals. And, I fail to see why the question of abortion and other life issues cannot be decided by elected officials, answerable to the people, rather than by unelected judges.

It's getting old with me as far as the Democrats are concerned. Every major nomination Bush has put forward has met with opposition and, in most cases, antagonism and character assassination (Estrada, Rice, Bolton, many lower court nominees). The most vocal Democrats are opposed to anything or anyone Bush puts forward (Social Security, Iraq, Patriot Act, Energy, lower taxes, faith-based initiatives, etc., etc.). And, they seem hell-bent on destroying people who have had success against them (Rove, Gingrich, Lott, DeLay, etc.). The Democrats have become the "anti" party.

[StPetersburgHoya (Inactive)]

You know Ed I was getting really mad at you until the last sentence of that post. Democrats do suffer from the fact that they are not good at all at being the minority party in both houses - never mind the white house for a second - they can only define themselves in opposition to the GOP and cannot put a comprehensive plan forward. Now I hate Gengrich and genuinely have nothing but bad wishes for him - however he was smart in leading a charge to put a set of values and proposals together in a comprehensive and easy to understand way when the GOP was a minority in the House and Senate in order to engineer the 94 switch in power that the DNC has never been able to completely erode. There was a good article posted on Raw Story a few days ago of analysis of this fact. There is no one on the left side of the aisle that can offer a comprehensive plan that doesn't devolve into just criticizing and sniping the other side (the GOP does do this too, but they are the majority party so they have the luxury of actually being able to do that and pass bills). The article basically says that the Dems need a congress and presidential candidate that can come up with a big picture bumper-sticker message about what they would do if in power. Whether you like him or not Clinton was very good at this: "It's the economy, stupid" and "Building a bridge to the 21st Century" were excellent lines. All Kerry could come up with was "If I am elected I will hold a series of international consultations and pass some technocratic laws allowing our troops to eventually get more body armor and higher pay ... blah ... blah ... blah ..." (the man was extraordinarily longwinded and devoid of all human emotion) - that's a terrible message - infact its not really a message its minor changes to the reality that already exists. It would be the equivalent of Dole saying "I want to build a causeway to the 21st century" - same message just slightly different, no real imagination, leadership, or anything else implied by it.

That being said, I think it comes down to a basket of issues this time: gay marriage, stem cells, cloning, abortion, gun laws, Guantanamo - of which abortion is still the main issue but it will probably get less airplay than other issues just because most of the other issues have come up since Thomas' nomination hearings.

[kchoya]

stpetersburghoya said:

I think the briefs and memos on how he would argue the law should be interpreted are valuable in descerning how he would rule as a justice.

I agree that they may be valuable, but I disagree that these Senators who think that they have a "right" to anything and everything they ask for. We went through this with Bolton and now it sounds like they're going to do the same thing with Roberts, mostly because they don't have anything else to hit him with.

Personally, I think that Roberts will do just fine answering whatever questions the Senators throw at him.

[StPetersburgHoya (Inactive)]

But if he starts citing attorney-client privelege a lot then I think it will get contentious.

[showcase]

kchoya said:

]sie=2]We went through this with Bolton and now it sounds like they're going to do the same thing with Roberts,

[/size][/quote]

Such disdain for elected officials seems peculiar from a conservative.

Honestly, I don't know why the government asks for tax returns routinely when conducting background checks. On the other hand, maybe it's to ensure that they were filed. Maybe it's to ensure the filer wasn't cheating on their taxes. These seem to me to be germane issues to check off when verifying that an individual is fit to sit on the highest court in the land.

For my part, I don't see a parallel between Roberts and Bolton. There were questions about Bolton's termperment from the beginning, and those concerns were substantiated. If Dubya wants a hothead like Bolton at the UN, perhaps its his business, but its also the Senate's business to question that decision. I see little in common between Bolton's situation and a request to get background materials on Judge Roberts - just my $.02.

Personally, I think that Roberts will do just fine answering whatever questions the Senators throw at him.

No reason not to fork over whatever it is the Senators want then, eh?

[StPetersburgHoya (Inactive)]

The only similarity between the two is they, like all nominations and treaties, must receive the advice and consent of the Senate. And in coming to those determinations the Senate has traditionally been given any information that either side should requenst.

[AustinHoya03]

A Duke law prof's argument against the release of internal Justice Dept. memos. He calls for tough and specific questioning instead. Seems pretty reasonable, IMO.

www.washingtonpost.com/wp-dyn/content/article/2005/07/26/AR2005072601549.html

[StPetersburgHoya (Inactive)]

Its reasonable, but the precedent was already set with Bork. There is no reason not to follow it.

[AustinHoya03]

stpetersburghoya said:

Its reasonable, but the precedent was already set with Bork. There is no reason not to follow it.

I'm not too familiar with the details of the Borking of Robert Bork. Was there some sort of court fight over the release of such memos or did the executive branch merely agree to release them? If it's the latter your argument is pretty thin, since executive branch policies change depending on who's in charge.

[StPetersburgHoya (Inactive)]

The information that really lead to Bork being dubbed an arch conservative was in memos written while he was in the Solicitor General's office. I do not know if there was a fight over it - I was 4 at the time. I'd have to do some digging to find that out.

[kchoya]

showcase said:

kchoya said:

]sie=2]We went through this with Bolton and now it sounds like they're going to do the same thing with Roberts,

[/size][/quote]

Such disdain for elected officials seems peculiar from a conservative.

Honestly, I don't know why the government asks for tax returns routinely when conducting background checks. On the other hand, maybe it's to ensure that they were filed. Maybe it's to ensure the filer wasn't cheating on their taxes. These seem to me to be germane issues to check off when verifying that an individual is fit to sit on the highest court in the land.

For my part, I don't see a parallel between Roberts and Bolton. There were questions about Bolton's termperment from the beginning, and those concerns were substantiated. If Dubya wants a hothead like Bolton at the UN, perhaps its his business, but its also the Senate's business to question that decision. I see little in common between Bolton's situation and a request to get background materials on Judge Roberts - just my $.02.

Personally, I think that Roberts will do just fine answering whatever questions the Senators throw at him.

No reason not to fork over whatever it is the Senators want then, eh? [/quote]

I do believe that whatever papers are turned over, there's not going to be anything damning in them. Of course there will be anti-Roe arguments and similar writings that some Democrats will try and trump up, but nothing radical or extreme.

I do think this whole fight over document production is a sideshow and the only arrow the Democrats have in their arsenal at this time.

I think that Bolton did have more negative marks against him, but in the end it did come down to the Democrats complaining about not getting more and more documents that they requested.

I do think there are legit reasons not to turn over certain materials, regardless of how Roberts will do during confirmation. Simply because there will be nothing damning in the materials does not mean that they should automatically be turned over. I mean, there's nothing bad in my tax returns, but that I doesn't mean I'll pass them out to anyone who asks.

[HoyaDestroya]

To borrow a little from a friend's blog...

Democrats used this same tactic when Miquel Estrada, who had served in the Solicitor General's office, was nominated to the appellate court. As expected the White House and Justice Department refused to release the documents, citing their privileged status.

At the time, all seven former solicitors general, four Republicans and three Democrats including Archibald Cox, sent a letter to the committee chair, Sen. Pat Leahy, expressing their opposition to the committee Democrats' request.

"Any attempt to intrude into the Office's highly privileged deliberations would come at the cost of the Solicitor General's ability to defend vigorously the United States' litigation interests -- a cost that also would be borne by Congress itself."

Their letter ended:
"Although we profoundly respect the Senate's duty to evaluate Mr. Estrada's fitness for the federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process."

With Democrats then in the majority, they were able to disregard the former attorneys general's letter and deny Estrada a vote, claiming the government's refusal to release the documents as their reason.

Estrada, who had received the American Bar Association's highest rating by unanimous vote of its committee on judicial nominations, waited 2 years for some resolution. There being none, he asked that his nomination be withdrawn.

If this is all you have - then keep it up, but this time something is different... Republicans are in the majority. Roberts will get his vote. The up or down vote he deserves. The up or down vote Estrada deserved.

A facsimile copy of the former attorneys general's letter is here... news.findlaw.com/hdocs/docs/estrada/exslctrsgen62402ltr.pdf

[showcase]

kchoya said:

Of course there will be anti-Roe arguments and similar writings that some Democrats will try and trump up, but nothing radical or extreme.

I do think this whole fight over document production is a sideshow and the only arrow the Democrats have in their arsenal at this time.

I think that Bolton did have more negative marks against him, but in the end it did come down to the Democrats complaining about not getting more and more documents that they requested.

I do think there are legit reasons not to turn over certain materials, regardless of how Roberts will do during confirmation. Simply because there will be nothing damning in the materials does not mean that they should automatically be turned over. I mean, there's nothing bad in my tax returns, but that I doesn't mean I'll pass them out to anyone who asks.

Well, there's a lot of subthreads that are going on here.

First, we don't know whether Roberts's views on Roe are extreme or not. Perhaps he had no role in crystalizing the Administration's position in Rust. The Senate can ask him, and if he demurs, then what? His memos are the only answer. Perhaps the Senate Dems are getting the cart before the horse, but it seems only prudent that the Senate get an opportunity to review the dox now, during the recess, particularly when a speedy post-recess advice and consent process will be the order of the day.

Bolton's a horse of a different color in my view. He hasn't enjoyed the uniform support of Senate Repulicans nor does Frist seem inclined to fight this one out. The Senate Democrats have asked for x, and the White House has produced x'. The White House can either acquiesce or attempt to push forward, but there's no constitutional entitlement having one's cake and eating it too.

To the extent there's a 'fight' over production of documents, I don't see much of one. Senate Democrats have asked for x, and the White House is still producing documents. Perhaps the White House will stand firm and only disclose x', but there's no indication that Senate Dem's won't be satisfied with x' down the road. I think it's just too early to start girding the partisan loins on this one.

Finally, I totally agree that it's perfectly understandable for a person to withhold one's tax returns from any tom, dick, or harry that asks for them. I just don't see the Senate Judiciary Committee as "anyone who asks," nor to I see a Supreme Court nominee as just your average person. When a nominee goes on to do something one side disagrees with, the refrain is alwasys "well, you confirmed him." Better to have a full and complete review and approval process now, particularly when its for the highest court in the land.

[showcase]

hoyadestroya2 said:

If this is all you have - then keep it up, but this time something is different... Republicans are in the majority. Roberts will get his vote. The up or down vote he deserves. The up or down vote Estrada deserved.

How poignant. Did your friend read ex-SG & current Dook Law prof Walter Dellinger's op-ed piece linked above? Have you seen what the Senate Republicans have proposed as fair questions to be asked? I'm guessing not, so:

Although legitimate institutional concerns call for restraint in the examination of a judicial nominee, the Senate's need for information beyond mere professional credentials is real.

...

An ever more valuable -- but questionable -- source of information would be memos written by a nominee expressing his own views as part of the government's internal decision-making process. I joined all living former solicitors general in arguing that memos written by court of appeals nominee Miguel Estrada as an assistant to the solicitor general were properly withheld from the Senate: The precedent of releasing such confidential documents would unduly chill the candor of analysis by Justice Department lawyers as well as by law clerks to judges and legal counsel to senators. Unlike Estrada, Roberts was writing memos not as a civil service lawyer but as a senior political appointee in a policymaking position, and the judgeship at stake isn't any federal judgeship but the Supreme Court itself. These factors and the announced release of volumes of earlier memos to the White House counsel -- undistinguishable as a matter of law from memos to the solicitor general -- suggest that the memos to the latter will be made public as well.

But why just pore over old memos for clues? Why not simply ask the nominee directly what he or she thinks about contentious social and legal issues? The standard objections to such questioning seem unpersuasive. It is said, for example, that a judge should be open-minded and that it is inconsistent with the obligation to answer a question such as whether Roe v. Wade was rightly decided. But having views doesn't preclude an open mind -- nor, as Michael Kinsley once said, does hiding your views make them go away.

Why would it be inappropriate to know as much about Roberts's views on controversial legal issues as we know about Justice John Paul Stevens's views? What is wrong with asking a nominee whether he or she agrees with Justice Antonin Scalia's dissenting opinion in Planned Parenthood v. Casey when we know that Scalia agrees with it and Scalia will be able to take part in future related cases without anyone suggesting that to be a problem.

There are legitimate concerns that should make some questions off limits, such as a question about an actual case coming before the court. More generally, nominees should answer questions about past cases and not future ones. And everyone involved in the process should make clear that by answering questions about his views on contentious legal and social issues such as abortion or affirmative action, the nominee is not making any commitment about how he or she would vote on any future case. A nominee may well come to a different view after having read the briefs and heard arguments or may find that his general views do not determine how to resolve the issue raised in a particular case. But with that important understanding, there is no reason why a nominee cannot answer questions that will give senators a meaningful sense of what kind of person the nominee is.

Whereas the Senate 'Pubs believe this:

No judicial nominee should be compelled to answer any question that would force him or her to prejudge or signal future conclusions regarding any case or issue.

Basically, seems like the Senate Republicans want to confine the questioning to the nominee's favorite color.

[HoyaDestroya]

1) I think I would hold the opinion of 7 bipartisan SGs over the opinion of one Walter Dellinger who served as Acting SG for a year under Clinton... and who is closely associated with NARAL - until 1992 (the year Clinton was elected surprise), served as co-chair of the NARAL-sponsored commission to defend Roe v. Wade... no matter what your views on abortion - he doesn't seem like the most objective judge of what should be asked of a supreme court nominee.

2) Last time I checked the Republican Policy Committee does not speak for all Senate Republicans... Jon Kyl is the Chairman and they provide memos for members to read and take into consideration, but members don't sign off on memos as views of Senate 'Pubs.