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U.S. Supreme Court

White House releases Roberts documents; Democrats call for more

By wire services
Published July 27, 2005

WASHINGTON - Senate Democrats looking to unearth Supreme Court nominee John Roberts' elusive views on abortion, civil rights and other controversial issues dug through thousands of newly released government documents Tuesday - and criticized the White House for refusing access to thousands more.

"It's more than what they need," President Bush's spokesman said of the material being turned over.

The disagreement over access to decades-old government records flared as Attorney General Alberto Gonzales suggested that, if confirmed, Roberts would not be bound by an earlier statement that the landmark 1973 ruling that established a woman's right to an abortion was settled law.

Gonzales said "a Supreme Court justice is not obliged to follow precedent if you believe it's wrong."

One week after Bush nominated Roberts to succeed Sandra Day O'Connor on the high court, the 50-year-old appeals court judge seemed to float above the fray as he continued courtesy calls on senators.

At the same time, Senate Republicans and the White House worked to try to assure a confirmation vote in time for him to don the robes of a justice before the court begins a new term. "Our duty is to have a justice seated by the first Monday in October, which is Oct. 3," said Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee.

Specter said he would convene hearings as early as Aug. 29 if necessary to meet that timetable. A later date - perhaps Sept. 6 - was possible, he said, depending on what type of assurances Democrats were willing to make.

Democratic leader Harry Reid of Nevada said he saw no need to rush. "I think the key to all this is to make sure that there's ample time for the committee to do its work," he said.

Vermont Sen. Patrick Leahy, senior Democrat on the Judiciary Committee, said he wanted to cooperate with the GOP.

"But moving forward on a schedule will also require the White House's cooperation with senators in answering their questions about this nomination," Leahy said.

That was a reference to documents the White House declined to release. Leahy and other Democrats on the panel wrote to Bush that they were "disappointed" in the action.

The politicians jockeyed for position as committee aides began sifting through the first of thousands of documents to be made available, dating from Roberts' tenure as a special assistant in the Justice Department from 1981-1982, and in the White House counsel's office in 1983-1986.

As a historical footnote, one memo was hard to beat - a one-page paper in which the young Roberts reported that beginning "my first day on the job" he had been helping O'Connor prep for her confirmation hearings to the high court.

He posed questions to her in two practice sessions, he wrote. And in a sentence that could apply to his own confirmation proceedings, Roberts wrote on Sept. 17, 1981, "The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments."

A document dated Feb. 16, 1982, showed Roberts offering advice for Attorney General William French Smith, who was girding for an appearance before conservatives unhappy with the direction the Justice Department was taking early in the Reagan administration.

Addressing criticism that judicial nominations weren't "ideologically committed to the president's policies," Roberts suggested something other than a "yes, they are" answer. "Rather, we should shift the debate and briefly touch on our judicial restraint themes," he wrote. "It really should not matter what the personal ideology of our appointees may be, so long as they recognize that their ideology should have no role in the decisional process."

It is a point that the Bush administration makes in the current case - that regardless of Roberts' personal political views, he will rule based on the Constitution and court precedent.

The White House arranged for the midafternoon release of records from Roberts' time at the Reagan Justice Department and said it would expedite the availability of certain documents at the Ronald Reagan Library dating from Roberts' tenure in the White House counsel's office.

It invoked attorney-client privilege, though, in withholding legal writings by Roberts when he was principal deputy solicitor general under the first President George Bush.

The White House view was supported by seven former solicitor generals - from Democratic and Republican administrations - making the case that a solicitor general must be able to rely on candid assessments from staff lawyers during the decision-making process.

"And you cannot have that if attorneys in the Office of the Solicitor General fear that that information might be disclosed," White House press secretary Scott McClellan said.

WASHINGTON - The attorney-client privilege does not apply only to people accused of crimes, but anyone who seeks advice from a lawyer.

Under attorney-client privilege, a client can ask that consultations be kept secret. The confidentiality is intended to encourage clients to be candid in their discussions with their lawyers, so they can get the best legal advice possible.

The Supreme Court has repeatedly recognized the privilege, and several confidentiality cases reached the high court during the Clinton administration.

In 1998, then-Whitewater prosecutor Kenneth Starr sought access to a lawyer's notes of a conversation with deputy White House counsel Vincent Foster nine days before Foster's suicide. The Clinton administration refused to release the documents. The case went before the Supreme Court, which ruled the documents were protected.

[Last modified July 27, 2005, 01:06:11]