Moving the Goalposts

That’s what the Democrats are trying to do, on several fronts, in connection with President Bush’s Supreme Court nominations. One instance of this is their demand that the administration turn over memos, etc., relating to Judge Roberts’ service as a deputy Solicitor General. This has never been done; the only prior such request, to my knowledge, was in connection with Miguel Estrada’s nomination to the Court of Appeals, which was declined. At that time, every living Solicitor General, Democrat and Republican, joined in a letter to the Senate Judiciary Committee supporting the administration’s position. Here is the text of the letter, which was signed by Seth Waxman, Walter Dellinger, Drew Days, Ken Starr, Charles Fried, Robert Bork and Archibald Cox:

We write to express our concern about your recent request that the Department of Justice turn over “appeal recommendations, certiorari recommendations, and amicus recommendations” thal Miguel Estrada worked on while in the Office of the Solicitor General.
As former heads of the Office of the Solicitor General – under Presidents of both parties – we can attest to the vital importance of candor and confidentiality in the Solicitor General’s decisionmaking process. The Solicitor General is charged with the weighty responsibility of deciding whether to appeal adverse decisions in cases where the United States is a party, whether to seek Supreme Court review of adverse appellate decisions, and whether to participate as amicus curiae in other high-profile cases that implicate an important federal interest. The Solicitor General has the responsibility of representing the interests not just of the Justice Department, nor just of the Executive Branch, but of the entire federal government, including Congress.
It goes without saying that, when we made these and other critical decisions, we relied on frank, honest, and thorough advice from our staff attorneys, like Mr. Estrada. Our decisionmaking process required the unbridled, open exchange of ideas – an exchange that simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure. Attorneys inevitably will hesitate before giving their honest, independent analysis if their opinions are not safeguarded from future disclosure. High-level decisionmaking requires candor, and candor in turn requires confidentiality.
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 bome by Congress itself.
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.

The administration is producing something like 75,000 pages of documents pertaining to Judge Roberts’ service in other roles. The Democrats’ demand for the memos, etc., that Roberts wrote while a member of the Solicitor General’s office is apparently predicated on the idea that they will show what he “really” thinks on topics like abortion. In fact, though, they would show only what Roberts thought the law was in a particular area, how he thought particular issues should be argued, or how he evaluated the potential for success of a particular argument in a particular court. The Democrats are smart enough to know this, so I suspect that their real purpose is to make a request they know the administration cannot accede to, simply to create the illusion of controversy over Judge Roberts’ nomination.


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