Democrats Again Request Roberts Papers

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Times Staff Writer

Senate Democrats renewed their request Wednesday to see 16 files of documents on John G. Roberts Jr., President Bush’s nominee for chief justice, arguing that the Reagan administration released similar documents when it nominated William H. Rehnquist to the position in 1986.

Bush administration officials countered that the two situations were dissimilar, that more than 60,000 pages of documents already had been released, and that the Democrats’ request was unreasonable.

Since Bush nominated Roberts for the Supreme Court -- first as a replacement for retiring Justice Sandra Day O’Connor, now as Rehnquist’s successor -- the White House has said that documents written by Roberts during the George H.W. Bush administration are off-limits to senators.


In their letter, Democrats argued that the documents -- from Roberts’ tenure as the principal deputy in the office of the solicitor general, which handles the government’s litigation before the Supreme Court -- were even more crucial to the confirmation process now that he was under consideration to lead the court.

“The documents we have requested from Judge Roberts’ time in the most senior executive branch position he held are of unparalleled relevance to our evaluation of his fitness for the position to which the president has now decided to nominate him, that of chief justice of the United States,” the Senate Judiciary Committee’s eight Democrats wrote.

Democrats say the documents will shed light on whether Roberts was an ideological architect of the first Bush administration’s policies in such controversial areas as affirmative action and abortion.

They say that if he proved to be too rigid in his beliefs, that would disqualify him to serve on the high court.

White House officials have provided more than 60,000 pages of documents from Roberts’ years as an associate White House counsel in the Reagan administration.

But they have insisted that releasing documents from his time in the solicitor general’s office would have a “chilling effect” on the department.


“The documents from the office of the solicitor general are privileged,” said Brian Roehrkasse, a Justice Department spokesman. “Just as seven former solicitors general from both Democratic and Republican administrations have stated, the confidentiality of these documents allows the solicitor general’s office to defend and represent the people of the United States and can’t be sacrificed as part of the confirmation process.”

The Judiciary Committee’s chairman, Sen. Arlen Specter (R-Pa.), endorsed the administration’s position.

“There is a ‘deliberative process’ privilege,” said Specter, who will preside over the confirmation hearings for Roberts, scheduled to begin Monday.

Although such a privilege is “not absolute,” he said, it is essential so that government lawyers can issue advisory opinions and recommendations on policy “without having the chilling effect that someday, someone in the future might be looking at their work.”

Democrats expressed dismay that administration officials had declined to meet with them to discuss ways of resolving the impasse.

They argued that when President Reagan nominated Rehnquist as chief justice, his administration released about two dozen documents related to Rehnquist’s service as an assistant attorney general in charge of the Justice Department’s office of legal counsel.


Administration officials who spoke on the condition of anonymity said that the situations were not comparable because of differences between the two offices: The solicitor general represents the United States in litigation, they said, and the disclosure of internal documents could undermine the government’s legal position.

Democrats cited a 1941 opinion by then-Atty. Gen. Robert H. Jackson, who had served as solicitor general and later was a Supreme Court justice, that they said endorsed disclosing confidential information because Jackson argued that nominees “whose entire history will not stand light” should be rejected.

Administration officials said Jackson’s opinion related to the disclosure of information about a nominee’s criminal record in an FBI background check and did not relate to documents written during government work that were unrelated to a criminal investigation.