Fishing for John Roberts's Executive-Branch Records
A justice delayed could become a justice denied
If you’re working to defeat a Supreme Court nomination, you will try to dig up all the negative stuff you can find about the nominee, and you will seek as much time as possible for your digging.
For Senate Democrats in 2005, John Roberts’s years as a lawyer in the executive branch provided an obvious opportunity: demand all of his records from his service in the administrations of Ronald Reagan and George H.W. Bush, first as a special assistant to Attorney General William French Smith (1981-1982), then as an associate White House Counsel (1982-1986), and finally as principal deputy solicitor general (1989-1993). If George W. Bush’s White House agreed to provide those records, the whole process of locating, compiling, and reviewing them might take so much time that the Judiciary Committee hearing would have to be pushed off. And if it didn’t agree to do so, Democrats would threaten to filibuster the Roberts nomination.
“We’re not looking to go on a fishing expedition,” declared Senator Teddy Kennedy. But that was very much what Senate Democrats were pursuing. And the longer the fishing expedition took, the better.
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As a formal matter, the Democrats’ demand for Roberts’s records had no legal weight. The Senate was in Republican hands, and only a request from Senate Judiciary Committee chairman Arlen Specter or from the Senate as a whole could lay the foundation for issuance of a subpoena down the road. But the competing legal arguments—e.g., the executive branch’s interest in preserving the confidentiality of deliberations and legal advice on sensitive matters versus the Senate’s interest in having as much information as possible about a Supreme Court nominee—were beside the point. As is generally the case in fights over judicial nominations, what mattered were intensely political considerations.
The White House wanted Roberts to be confirmed promptly, and it especially didn’t want to give Senate Democrats a possibly appealing excuse for filibustering the Roberts nomination. The White House, I’m told, had reviewed most of Roberts’s White House records in advance of his nomination, and although White House officials anticipated that some of Roberts’s remarks might create a political stir, they were confident that the records would not pose a large problem. So in consultation with Specter, the White House promptly agreed to provide the Senate most of what Democrats were requesting:
The White House will make public the bulk of documents related to Supreme Court nominee John G. Roberts Jr.'s service as a lawyer in Ronald Reagan's administration but will withhold papers generated during his time as deputy solicitor general under President George H.W. Bush to preserve privileged internal deliberations, officials said….
Specter then announced that Roberts’s confirmation hearing would begin just over a month later, on September 6.
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The White House stood strong on principle in refusing to provide Roberts’s records as principal deputy solicitor general. Its decision to do so was driven by a previous confirmation battle.
As we shall see when I circle back to the battle that Democrats waged in Bush’s first term against many of his appellate nominees, perhaps the most momentous fight was over D.C. Circuit nominee Miguel Estrada. Democrats targeted Estrada, and launched their unprecedented campaign of partisan filibusters against him, because he was a brilliant young legal conservative who was also Hispanic and thus was rightly seen as a strong candidate to become the first Hispanic justice.
As part of their obstruction, Democrats demanded that the White House release Estrada’s records from his five years as an assistant solicitor general, 1992 to 1997. In response to that demand, all seven living former heads of the SG’s Office—Seth Waxman, Walter Dellinger, Drew Days, Ken Starr, Charles Fried, Robert Bork, and Archibald Cox—sent a letter to Senator Patrick Leahy, then chairman of the Senate Judiciary Committee, explaining why that demand was improper.
This remarkable bipartisan group of highly respected lawyers “attest[ed] to the vital importance of candor and confidentiality in the Solicitor General’s decisionmaking process” and pointed out that the “unbridled, open exchange of ideas . . . simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure.” The letter further stated that “[a]ny 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.”
George W. Bush announced the D.C. Circuit nominations of Roberts and Estrada on the very same day, May 9, 2001. Amazingly, Senate Democrats were so focused on preventing a Hispanic legal conservative from being confirmed to the D.C. Circuit that they did not bother to make a similar demand for Roberts’s records from his service in the same Office of the Solicitor General. The Senate confirmed Roberts’s D.C. Circuit nomination on March 8, 2003, just two days after Democrats defeated the first of seven cloture votes on Estrada’s nomination. Estrada abandoned his quest for confirmation six months later.
The White House made the decision not to release OSG memos on the Estrada nomination. So when that same issue resurfaced in 2005 on Roberts’s Supreme Court nomination, it had already been resolved and the White House wasn’t going to revisit it. That stance was reinforced by the fact that White House lawyers were still angry over Senate Democrats’ mistreatment of Estrada. They weren’t going to cave to Senate Democrats on this issue, and they knew that the joint letter from all former SGs amply justified their refusal.
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In the days and weeks after its announcement, the White House released some 80,000 pages of Roberts’s documents in a dozen or so batches. Each release involved some genuine drama. Who knew what might be in those pages?
So we had repeated cycles in which the Left and its handmaidens in the media would race to generate criticism of Roberts by misrepresenting what they found in new releases and to advance a narrative that Roberts was hostile to civil rights and to women’s rights:
“Roberts scoffed at equal-pay theory,” a USA Today headline proclaimed, as if he opposed equal-pay laws, when what earned his derision was the radical and loony concept of “comparable worth,” which would call for an army of judges and bureaucrats to (in Roberts’s accurate description) “decide how much a particular job is worth, and restructure wage systems to reflect their determination,” and thus “mandate[] nothing less than central planning of the economy.” The “comparable worth” theory is so patently foolish that rejection of it would be a sensible criterion for eligibility to take part in public service.
A front-page article in the New York Times contended that Roberts “wrote a blistering critique” of “a report [by the U.S. Commission on Civil Rights] broadly defending affirmative action as a way to combat pervasive discrimination” and that he said that the “‘obvious reason’ affirmative action programs had failed was that they ‘required the recruiting of inadequately prepared candidates.’” But Roberts’s actual comment in the quoted memo was clearly directed at a single specific program in a municipal police department.
Roberts supported a proposal “that would have narrowed the reach of the 1965 Voting Rights Act,” the Washington Post charged, when Roberts was in fact defending an Administration proposal that would have supported extension of the Act without any changes.
“Roberts Resisted Women’s Rights,” a front-page story in the Washington Post proclaimed, when Roberts was fighting leftist proposals involving gender quotas and comparable worth.
Roberts had “Neanderthal ideas about women’s place,” charged the president of the National Organization for Women, as she mistook what even the New York Times recognized to be a “(perhaps not terrific) joke about lawyers … as an insensitive critique of women.”
Roberts, the Washington Post claimed, gave a narrow reading to the sex-discrimination provisions of Title IX when he read its plain language to mean exactly what the Supreme Court, in an opinion joined by Brennan and Marshall, had said four months earlier.
Yes, I could go on and on, as I did for weeks back in 2005.
What was really at issue but had to be obscured, as I explained in my essay “Quarreling About Quotas,” is that Roberts embraced the original American vision of civil rights that (as a speech he worked on put it) was guided by the principle that “individuals should be treated as individuals, without regard to race, creed, or ethnic background” and that saw “America as the new world of individual merit, not membership in caste or social groups.” By contrast, leaders of the liberal civil-rights community were focused on “advancing particular groups as groups” and were attached to remedial devices, like quotas and busing, that not only had proven ineffective but that elevated equality of results among groups above individual opportunity.
Roberts’s records ended up bolstering his support among conservatives, whose confidence in his nomination had been shaken by some earlier developments. His records showed that he had a brilliant and comprehensive legal mind, that he wrote with grace and clarity, that he was a strong advocate of the Reagan administration’s conservative policies, and that he was a scathing critic of leftist proposals.
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As the September 6 hearing date approached, it became clear that the Democrats’ document demands had failed to uncover any potent ammunition against the Roberts nomination. The hearing would proceed as scheduled. Or so it seemed.
Excellent and important history. The Senate Democrats' treatment of Miguel Estrada, not to menton Clarence Thomas (at least he was confirmed) and Robert Bork remain as horrific stains on the history of the Senate. I should add Brett Kavanaugh, whose confirmation may be the worst example of partisan excess since Estrada.
If Roberts had withdrawn, who do you think would have become the nominee for Chief Justice?