Democrats Pinpoint the Files They Want

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Times Staff Writer

Democrats are preparing to send the White House a request for documents from fewer than 20 of more than 300 cases in which Supreme Court nominee John G. Roberts Jr. played a role during his time as a political appointee in the administration of George H.W. Bush, a key senator said Thursday.

The request, expected to be delivered as soon as today, will be “limited and targeted,” focusing on Roberts’ work on constitutional issues, senior Senate Judiciary Committee member Edward M. Kennedy (D-Mass.) told reporters.

The White House has declared material from that part of Roberts’ career off-limits under attorney-client privilege.


That is the period when Roberts, as chief deputy to Solicitor Gen. Kenneth W. Starr, argued on such key issues as abortion and separation of church and state.

The relatively narrow request is the Democrats’ opening maneuver in what they hope will be a negotiating process with the White House that will lead to the release of some documents, as has occurred in previous high court nominations.

“All we’re trying to do is find out as complete and open a picture as we can on targeted issues related to constitutional issues,” Kennedy said.

He said he was hopeful that Republicans on the committee would support the request. A spokesman for Judiciary Committee Chairman Arlen Specter (R-Pa.) said no decision had been made.

White House spokesman Scott McClellan indicated little patience with Democratic demands.

“We went out of our way this week to help expedite the release of documents so that they could move forward in a timely manner,” McClellan said. “And now you see members of the Senate, some Democrat members of the Senate, making unreasonable requests. It’s just not appropriate to get into the documents related to the solicitor general’s office.”

Kennedy argued that the White House claim of attorney-client privilege was not based in law or previous practice.


“Solicitor generals ... are representing the public interest. They are representing the people of Massachusetts’ interest and the Senate’s interest,” Kennedy said. “Therefore, the documents ... are not going to violate the lawyer-client privilege or even executive privilege.”

Kennedy and other Democrats have argued that previous administrations have released documents from the solicitor general’s office as part of Supreme Court nominations. A Democratic aide provided copies of such documents from President Reagan’s nomination of Robert H. Bork in 1987, including some on letterhead from the office of the solicitor general or the attorney general.

The aide also provided copies of documents from the confirmation of William H. Rehnquist as chief justice in 1986. The documents show then-Assistant Atty. Gen. John R. Bolton -- currently President Bush’s nominee for U.N. ambassador -- providing documents in response to a request from Democrats, who, then as now, were the minority party in the Senate.

“Having a targeted release of materials related to constitutional issues is certainly something that should be supported by the American people,” Kennedy said.

Republicans accused Democrats of making unreasonable requests for documents.

Assistant Majority Leader Mitch McConnell of Kentucky, the Senate’s second-ranking Republican, said Democrats should have been happy with the thousands of pages the White House had made available from earlier in Roberts’ government career.

“I doubt that our colleagues have pored through those pages already, and yet they are hungry for more,” McConnell said in a speech on the Senate floor.


But the documents released so far, Kennedy said, only raised more questions about Roberts’ political and judicial views. He circulated among reporters copies of several Reagan-era documents in which he said Roberts expressed “a rather cramped view of the Voting Rights Act” and questioned legislation to combat discrimination in housing and universities.

The documents “certainly raise some questions in my mind about his commitment” to civil rights, Kennedy said.

Sen. John Cornyn (R-Texas), one of Roberts’ chief proponents, said Democrats were trying to slow the process by seeking “every piece of paper written by Judge Roberts when he was a government lawyer.”

“This may indeed be the beginning of a case of moving the goalpost each time a document request is made and then satisfied, to then ask for more, which then leads to another request for more, in a game that the nominee cannot win,” Cornyn said.

Republicans said Democrats were using three tactics to try to scuttle any Supreme Court nominee: accusing the White House of failing to consult with Congress, accusing the nominee of being an extremist, and delaying proceedings with round after round of document requests.

In his daily briefing to reporters, McClellan, the White House spokesman, said the first two tactics had not worked so Democrats were concentrating on the third.