Demos warned to go easy on Roberts files

0 Comments | Deseret News (Salt Lake City), Jul 26, 2005 | by Jennifer Loven Associated Press

WASHINGTON -- The White House on Monday warned Democrats not to make extensive requests for Supreme Court nominee John Roberts' legal writings in previous Republican administrations, saying many such documents are "out of bounds."

Separately, the Supreme Court nominee waved off questions about whether he was a member of a conservative legal organization. Roberts, on his fourth day paying courtesy calls on senators, hasn't answered questions since President Bush announced him -- as is typical for nominees -- and one Democratic senator said the matter wouldn't affect the confirmation.

A USA TODAY/CNN/Gallup Poll taken Friday through Sunday finds that a majority of Americans expect a battle over Roberts. But by almost 3 to 1 -- 59 percent to 22 percent -- the public thinks the Senate should vote to confirm him for the high court. His favorable- unfavorable ratings are a muscular 46 percent-13 percent.

With Bush's first chance to shape the Supreme Court at stake, the White House is hoping to avoid the kind of showdown with Democrats over document requests that has stymied Senate confirmation of some of the president's other high-profile nominees. Asked repeatedly to say whether the administration was open to making Roberts' writings as a former administration lawyer available, White House press secretary Scott McClellan avoided saying "no" outright.

"We want to work with the members of the Senate to make sure that they have the appropriate information so that they can do their job," McClellan said. Democratic Sen. Joseph Lieberman of Connecticut, one of the Senate centrists who stopped an earlier Senate showdown over Bush's judicial nominees, called on the White House to be flexible.

"I'd hate to see us get into a battle over whether the administration was going to share documents instead of the basic question of is Judge Roberts deserving of confirmation to be a justice of the United States Supreme Court," Lieberman said.

The issue could be critical as the Senate prepares to decide whether to confirm Roberts as Bush's replacement for retiring Justice Sandra Day O'Connor.

Democrats have offered no indication that they plan an all-out battle against Roberts. But since his two-year tenure on the federal bench has left him with a limited public record, they have hinted they may seek memos, briefs and other documents he authored while working for two Republican presidents to shed more light on his stands on such key issues as abortion, the environment and federal jurisdiction.

Under President Reagan, Roberts was a lawyer in the White House counsel's office. Under the first President Bush, Roberts was principal deputy solicitor general, a key position in the office that argues cases before the Supreme Court on behalf of the administration.

Some records already are publicy available at the Reagan and Bush presidential libraries. Others still need clearance from representatives of the current president and former administrations, as required by law, and archivists.

The Senate Judiciary Committee has yet to make any request. Sen. John Kerry, D-Mass., not a member of the committee, was the first to urge the White House to release Roberts' written record "in its entirety."

McClellan suggested that many -- if not all -- such documents would be withheld, saying that past administrations have also concluded they are shielded by attorney-client privilege and privacy.

"We hope people wouldn't make such requests that they know are considered out of bounds and that can't be fulfilled because of those privacy issues," he said.

Sen. Patrick Leahy, the senior Democrat on the Judiciary Committee, said material written in confidence while serving in an administration has been provided in the past -- for instance by Reagan when he nominated William H. Rehnquist for chief justice.

Norm Ornstein, a political analyst at the American Enterprise Institute think tank, said Democrats would be making "a stupid tactical error" to demand that all Roberts' memos be turned over. "It clearly violates the separation of powers," he said.

And Sen. Dianne Feinstein, D-Calif., said the memos, which require Roberts to argue the position of the administration, aren't likely to be very important "unless it relates to confirming something that becomes a major question."

In preparation for confirmation hearings expected to begin at the end of August or beginning of September, Roberts met with five senators, including Feinstein.

She emerged impressed with Roberts' ability to rule without "any extraneous points of bias."

"There is not a lot of controversy surrounding him. There just isn't," she said.

Also Monday, the White House was unable to say definitively whether Roberts was a member of the Federalist Society, an influential legal group formed to counter what its members saw as growing liberalism on the bench.

A 1997-98 leadership directory for the Federalist Society lists Roberts as a steering committee member in the group's Washington chapter, The Washington Post reported. Roberts was at the time a partner in a private law firm.