Published July 27, 2005
WASHINGTON – As the Bush administration began handing over 75,000 pages penned by Supreme Court nominee John Roberts (search), one Democrat raised questions about the White House's refusal to share papers it claims are protected by attorney-client privilege.
Senators on Wednesday continued to squabble over when confirmation hearings for Roberts nominee would begin. Republicans want to get started around Aug. 29. Democrats argued they were being pressured to move forward on a nominee they didn't know enough about yet.
Sen. Patrick Leahy (search) of Vermont, ranking Democrat on the Senate Judiciary Committee, said Wednesday that he would vote against Roberts if the judge seemed likely to pursue an "activist" philosophy. But Sen. Chuck Schumer (search), D-N.Y., who also sits on the committee, said Roberts assured him he is no ideologue.
"He told me flatly that he is not an ideologue and said that he shares my aversion to ideologues," Schumer said in a speech prepared for the National Press Club. "Furthermore, he said I could repeat that publicly — that he is not an ideologue."
In an interview broadcast Tuesday on Vermont Public Radio's "Switchboard" program, Leahy said not only that he might vote against Roberts, but that he was also worried Roberts might try to unravel laws and judgments that should be settled issues.
"They have struck down parts of the Violence Against Women Act, environmental acts, child safety legislation," Leahy said of the current Supreme Court. "They've knocked down all these, basically writing the law themselves ... I want to find out if he's going to be as active as this — as people like Justice [Antonin] Scalia and Justice [Clarence] Thomas, who have almost willy-nilly overruled things."
Leahy said any Supreme Court nominee who did not agree that Roe v. Wade (search) — the 1973 case that established a woman's right to an abortion — was established legal precedent would have difficulty getting confirmed.
"Just as you would not have a justice nominee who said, 'Well I wouldn't consider Brown vs. Board of Education settled law,' I don't see how they could get confirmed," Leahy said. "I don't see how somebody who said that they didn't consider Roe vs. Wade settled law ... [could] get confirmed."
Brown v. Board of Education is the 1954 Supreme Court decision that struck down racial segregation in public schools.
Files from 1981 and 1982 concerning Roberts turned over by the National Archives paint a picture of a politically savvy attorney who showed some impatience with "judicial activism."
On the hearing date issue, Judiciary Committee Chairman Sen. Arlen Specter (search), R-Pa., said Wednesday he would like to convene hearings as early as Aug. 29, or no later than Sept. 6, so that the nominee could be confirmed before the start of the high court's new term on Oct. 3.
Specter said he preferred the later date, but added that unless Democrats expressed a commitment to seating Roberts by the first Monday in October, he would find it necessary to start the hearings a week earlier, forcing senators to return early to Washington from their monthlong summer recess.
"Absent that kind of commitment, it seems to me that duty will call on us to go ahead with August 29th," Specter said, adding that a vote starting Sept. 12, which he said some have suggested, was "totally out of the question."
A final confirmation vote will likely come before the end of September anyway, regardless of when the hearings begin, Leahy said.
For his part, Roberts, 50, continued to make courtesy calls on senators. Sen. Olympia Snowe (search), R-Maine, described her Wednesday discussion with Roberts as "very constructive" and she appreciated his expressing a "respect for precedent and the rule of law."
Sen Mike DeWine, R-Ohio, also met with Roberts on Wednesday, and after what DeWine termed a broad discussion about Roberts' judicial philosophy, he said he saw "absolutely no reason" to vote against confirmation.
"The president made a good pick. [Roberts] is a very impressive man with a very impressive background," DeWine said.
The Document Fight
Democrats, anxious to learn Roberts' stand on abortion and the death penalty, said the nominee's supporters were trying to push them into voting before they get all of the paperwork they think they will need on the Roberts' work for Presidents Reagan and George H.W. Bush.
The White House released some of the documents on Tuesday, but Democrats wanted more. In a letter sent to President Bush on Tuesday, Democratic members of the committee listed topics they are most interested in reading about if Roberts has written on them.
On Wednesday, Sen. Ted Kennedy (search), D-Mass., blasted the administration for what he called a "pattern of withholding information from members of Congress on the administration's nominations."
Citing legal memos requested by Congress in 2004 authored by then-White House counsel Alberto Gonzales (search) about the administration's policy on torture, and documents regarding U.N. ambassador nominee John Bolton (search) during his tenure at the State Department, Kennedy said lawmakers "have been repeatedly denied."
The White House on Tuesday began turning over to senators some of the documents prepared by Roberts while an administration attorney, but will not give up papers Roberts wrote while in the solicitor general's office from 1989-1993. The move came without formal requests for any information on Roberts.
Documents from 1981 and 1982, when Roberts was a special assistant to Attorney General William French Smith, were made public at the National Archives in 1998 by President Clinton. They total between 10,000 and 15,000 pages.
About 10 percent of the documents being released to the panel are already public in the Reagan Presidential Library in Simi Valley, Calif.
The other 90 percent — about 50,000 documents — remain private, covered by the Presidential Records Act. All relate to Roberts' time as an associate counsel in the White House between 1982 and 1986.
White House officials said they asked the library to expedite the review of other Roberts records to determine what could be released. Some pages could be withheld because of national security and privacy or personal reasons.
Kennedy argued on Wednesday that as a lawyer in the solicitor general's office, Roberts didn't just represent the president but the American people, and therefore, attorney-client privilege didn't hold up as a reason to not release the documents.
"Americans deserve better. They deserve the information necessary to become informed, effective citizens," Kennedy said. "We as lawmakers are better able to represent our constituents whom we have access to the critical information held by the executive."
DeWine said he thought the issue of documents "is really something between the administration, the chairman and the ranking member" of the Judiciary Committee to decide.
Snowe said she was not exactly sure which documents should be released.
"I think certain decisions should be made and I'm not sure where the lines should be drawn ... I know there are issues concerning attorney-client privileges. We obviously don't want to have a chilling effect," said the Republican senator. "I think we have to decide what lines have been drawn."
Sen. Joseph Lieberman, D-Conn., one of the "Gang of 14" centrists who quashed an earlier Senate fight over Bush's judicial nominees, said: "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?"
The disagreement over access to decades-old government records flared as Attorney General Alberto Gonzales suggested that, if confirmed, Roberts would not be bound by an earlier statement that the landmark 1973 ruling that established a woman's right to an abortion was settled law.
Gonzales told The Associated Press in an interview that "a Supreme Court justice is not obliged to follow precedent if you believe it's wrong."
In one memo, addressing criticism that judicial nominations weren't "ideologically committed to the president's policies," Roberts suggested something other than a "yes they are" answer.
"Rather, we should shift the debate and briefly touch on our judicial restraint themes," he wrote. "It really should not matter what the personal ideology of our appointees may be, so long as they recognize that their ideology should have no role in the decisional process."
It is a point that the Bush administration is making now — that regardless of Roberts' personal views, he will rule based on the Constitution and court precedent.
FOX News' Julie Asher and The Associated Press contributed to this report.