Your Papers, Please
Currie, Duncan
Your Papers, Please Will the Democrats go fishing for documents to sink Roberts? BY DUNCAN CURRIE CALL IT the Estrada/Bolton strategy. One way Senate Democrats may seek to derail, or at least...
...That leaves the third...
...But Roberts presents a tougher target...
...When Estrada said he’d “think about” the release of documents, Kennedy tersely replied, “Well, you’d better think about it...
...Those memoranda wouldn’t be his to turn over even if he wished to...
...But the use of (disingenuous) documentrequest tactics to hinder presidential appointments has a long pedigree...
...His Democratic critics had a laundry list of gripes with Bolton (his alleged browbeating of subordinates, his low opinion of the U.N., his general hawkishness...
...Top Democrats will claim they can’t properly judge Roberts without access to those records...
...The principles at stake here have deep common-law and constitutional roots, argues C. Boyden Gray, White House counsel under Bush I and now chairman of the Committee for Justice (a conservative counterweight to People for the American Way...
...And if the Bushies still won’t release them...
...The White House hasn’t budged...
...The Schumer-Kennedy Democrats “were emboldened by Estrada,” says a senior GOP Senate aide, and even “more so by Bolton...
...general, including three—Seth Waxman, Walter Dellinger, and Drew Days—who served under President Clinton, and one—Archibald Cox— who served under President Kennedy...
...Gray draws a parallel to press freedom: “It’s like asking [reporters] for their preliminary drafts...
...We’ve told them what we’ve wanted,” Senate Democratic leader Harry Reid said on CNN last month...
...Kennedy was less diplomatic...
...Which may be the best Democrats can hope for in this case...
...Three: demand the administration produce internal documents to shed more light on the nominee’s record...
...Along with Republicans Robert Bork, Charles Fried, and Ken Starr, they signed onto a June 2002 letter, drafted by Waxman, attesting to the sensitivity of documents prepared in the solicitor general’s office: 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 borne by Congress itself...
...For one thing, he’s a higher profile nominee than Estrada...
...If they want John Bolton as ambassador to the United Nations, give us this information...
...One way Senate Democrats may seek to derail, or at least muddy, the confirmation of John Roberts to the Supreme Court is by asking for confidential case memos the nominee wrote while serving as deputy solicitor general under President George H.W...
...The second won’t work, since Roberts boasts a goldplated CV, a short paper trail on the bench, a bipartisan support network of legal heavyweights, and a venerable career in the Washington establishment...
...They asked to see internal position papers Estrada had penned during his time in the solicitor general’s office...
...This is all hypothetical, of course...
...The current Bush administration will balk at any such request, citing attorney-client and executive privilege...
...Senate Democrats were undeterred...
...Best of all, it’s a strategy that makes the aggressor look like the aggrieved...
...If it were up to me as a private citizen,” he told Schumer, “I would be more than happy to have you look at everything I’ve done for the government or in private practice...
...Will Democrats try the Estrada/ Bolton strategy on Judge Roberts...
...Absent a recess appointment, Bolton will remain in limbo...
...So while Estrada was lawyering for the solicitor general’s office, the U.S...
...At a Judiciary Committee hearing on September 26, 2002, Chuck Schumer and Ted Kennedy pressed Estrada...
...But it helped torpedo Estrada...
...to decry Bush’s “stonewalling...
...Democrats will put on long faces and claim they have no choice but to drag their feet...
...The very night Bush tapped Roberts, Schumer laid out “the threshold question”: “Will he be forthcoming in both answering questions and making available documents about his previous record...
...Bush...
...On that score, the Bushies received succor from seven former solicitors Duncan Currie is a reporter at THE WEEKLY STANDARD...
...Sure sounds like it...
...Asking for internal case memos from the solicitor general’s office—memos they know the White House won’t disclose—will enable Schumer & Co...
...Two: paint the nominee as a right-wing ideologue...
...And, so far, a similar ploy has kept John Bolton away from the U.N...
...Thus their rallying cry: Fork over the intercepts, or else...
...Democrats suggest Bolton could have used the NSA info to further his turf wars at State (although State Department officials all told made around 500 such requests over the same period...
...But it isn’t that simple...
...President Bush tapped the Washington lawyer for an appellate court slot in May 2001, shortly before Vermont’s Jim Jeffords bolted from the GOP and gave Democrats control of the Senate...
...government was in effect his client...
...But leading Democrats took a procedural tack...
...Take the Estrada precedent first...
...Prior to the Roberts pick, the Washington Post’s Mike Allen reported Senate Democrats’ three probable “lines of attack” on Bush’s nominee...
...If they don’t, there will be no Bolton...
...Although we profoundly respect the Senate’s duty to evaluate Mr...
...The solicitor general represents the president before the Supreme Court...
...Bush obviated the first by meeting with Democrats...
...Circuit Court of Appeals...
...Such tactics are being deployed now to forestall John Bolton’s nomination as U.S...
...More to the point for Roberts, they are what blocked the ascent of another veteran of the solicitor general’s office, Miguel Estrada, to the D.C...
...I would be reluctant to support moving your nomination until we see those memoranda...
...Should the White House divulge confidential Justice Department memos, Gray says, “It would totally cut off any kind of internal debate...
...Estrada made the most salient point...
...Thus, Democrats’ best hope of tripping him up may hinge on document requests...
...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...
...Schumer, perhaps the most aggressive Democrat on the Judiciary Committee, wasted no time in affirming that he would pursue this angle...
...Knowing that you are a good lawyer and seeing you’re a good lawyer is not enough,” Schumer said...
...Estrada critics could have gone any number of ways...
...The White House refused, avowing the need for privacy in such matters...
...ambassador to the United Nations...
...Maybe...
...officials recorded in National Security Agency intercepts...
...It will turn the confirmation process into a debate over executive privilege, rather than a debate over John Roberts...
...That is, lawyers in the solicitor general’s office would be much cagier with their advice, knowing their private scribbles could become fair game in a subsequent confirmation fight...
...Over his four years in the State Department, Bolton apparently made ten requests for the names of U.S...
...But the ostensible justification for their ongoing filibuster is a quest for documents...
...One: claim insufficient consultation by the White House...
...And unlike Bolton, he is hardly a partisan lightning rod...
Vol. 10 • August 2005 • No. 43
