ConfirmThem

By AndrewHyman Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

Two days ago, I predicted that John Roberts will be easily confirmed, without need of any help from the likes of us bloggers. I still think and hope that's true. But if things do descend into a mudfight, the issue will probably be Democratic attempts to get confidential memos that Roberts wrote when he worked in the Justice Department. Winning a fight about the Roberts memos may finally end the kind of unprecedented memo-seeking obstruction that we've seen in the Estrada and Bolton nominations. Today, Opinion Journal made a similar point:

Expect . . . to hear demands for the White House to release the confidential case memorandums written by Judge Roberts during his time in the Solicitor General's office. This is the Democratic delaying tactic du jour, used as an excuse to filibuster Miguel Estrada's nomination for the D.C. Circuit and employed most recently against John Bolton. We hope the White House resists, lest every lawyer in the SG's office starts giving advice not on the merits but based on how it might look at some future confirmation hearing.

The Chicago Tribune is reporting the same kind of thing.

While acknowledging his reputation as a first-rate legal thinker, some Democratic senators have indicated they will seek some of the confidential internal documents and memorandums Roberts wrote as a government lawyer, working for Presidents Ronald Reagan and George H.W. Bush. Those documents, they suggest, could give them vital insight into Roberts' views on abortion and other issues.

That sets up a potentially fiery debate, not initially on Roberts' positions, which remain obscure, but on Congress' right to have access to the confidential papers as it decides whether to grant Roberts an appointment to the Supreme Court.

"The Senate's role will be to establish clearly whose side John Roberts would be on if confirmed to the most powerful court in the land," said Sen. Edward Kennedy (D-Mass.), a senior member of the Senate Judiciary Committee. "Because Judge Roberts has written relatively few opinions in his brief tenure as a judge, his views on a wide variety of vital issues are still unknown."

The fight is likely to center on Roberts' tenure in the Office of the Solicitor General at the Justice Department, which represents the administration before the Supreme Court.

Much more than John Roberts is at stake in the Roberts nomination, including the continued use of excessive document requests to justify obstruction of nominees, as in the Estrada and Bolton filibusters. Senator Kennedy's complaints about the lack of a Roberts paper trail are particularly unpersuasive, as Marshall Manson already noted at this blog, given that Roberts would have a much longer paper trail had his nomination for circuit court not been obstructed for so many years. Past and present Solicitors General will probably take the same position on the Roberts memos that they took on the Estrada Memos, and they were 100% correct.