Struggle Over Access to Roberts' Memos Intensifies
WASHINGTON — The White House and Senate Democrats parried Wednesday over the Senate's right to review documents from Supreme Court nominee John G. Roberts Jr.'s service in the first Bush administration, with the White House continuing to take a hard line on release of executive branch materials.
Democrats stepped up their demands for access to memos Roberts wrote while working as deputy solicitor general from 1989 to 1993, which they thought would help them determine whether he was a conservative ideologue. Roberts at the time was a political appointee working as principal deputy to Solicitor General Kenneth W. Starr.
"The president alluded to this work in his statements as contributing to his basis for selecting Judge Roberts as his nominee," said Sen. Patrick J. Leahy (D-Vt.). "It clearly is appropriate that the Senate also be entitled to vital information the White House weighed in making its decision about this nomination."
White House spokesman Scott McClellan said not even officials in the White House had reviewed documents from that period of Roberts' career because they were covered by attorney-client privilege.
"We haven't seen or reviewed any of those documents," McClellan said. "It wouldn't be appropriate for us to do so. That's privileged information that is related to the confidential deliberative process between attorney and client."
Senate Democrats said they found that assertion unusual, arguing that attorney-client privilege was a legal doctrine covering courts, not Congress.
Congressional staff from both parties suggested that it was more politically palatable for the White House to cite attorney-client privilege than to assert executive privilege -- a more formal doctrine that could potentially be challenged in court.
"In trying to hide behind attorney-client privilege, the White House is ignoring a long tradition of releasing executive branch documents that Congress needs to perform its constitutional duties," said Tracy Schmaler, spokeswoman for the Democratic staff of the Senate Judiciary Committee. "The attorney-client privilege does not prevent the White House and the Department of Justice from turning over to the Senate documents that it needs to conduct a fair and open hearing on Mr. Roberts."
Republicans accused Democrats of using documents as a subterfuge to combat the nomination. They also argued that even as a political appointee, the views Roberts expressed during that period of his government service would represent that of his client, the administration.
