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July 27, 2005
75,000 Isn't Enough

Have the Democrats settled on an Estradification of Supreme Court nominee John Roberts? It certainly appear so. The White House offered to release 75,000 pages of documents relating to Roberts and his tenure at the Reagan and Bush 41 administrations, but the Democrats don't find that number acceptable:

"This in no way satisfies any potential document request," said one Democratic aide, generally reflecting the sentiments of Senate Democrats. "The White House has artfully made it look like they are saying yes to our requests, when they are actually saying no."

Democrats on the Senate Judiciary Committee wrote President Bush late yesterday saying they are "disappointed" in the decision to cut off access to "important and informative documents written" by Judge Roberts. Those documents, they said, may be necessary to "evaluate Judge Robert's judicial philosophy and legal reasoning."

The White House has refused to release federal Judge Roberts' papers from his time as deputy solicitor general in the first Bush White House, saying that doing so would violate attorney-client privilege and set a dangerous precedent for judicial nominees. The Solicitor General's Office is the federal government's lawyer in cases that come before the Supreme Court. ...

Sen. Patrick J. Leahy, Vermont Democrat and ranking member of the Judiciary Committee, responded to the offer by saying the Senate -- not the White House -- will decide what it needs.

"If the White House announcement is intended to begin a dialogue about documents, I welcome it," he said. "If it is intended to unilaterally pre-empt a discussion about documents the Senate may need and is entitled to, then this is a regrettable beginning."

Despite the protests of all living former Solicitors General, including several Democrats, against the release of privileged material to the Senate or anyone else, the Democratic leadership will continue to press for these documents in open disregard for attorney-client confidentiality. To call these documents red herrings gives them too high a status. The internal memoranda that the Democrats demand to see will reveal advice given by the SG office on specific cases which the former administrations fought in the federal appellate courts. The SG does not create policy; it merely represents those that do, and in order to do so effectively, they must discuss the ramifications of policy with the administration. Unless Roberts actually worked in the administration in a policy-development position, then these writings don't have any relevance whatsoever. Roberts wasn't even the Solicitor General, just one of the deputies.

So why do the Democrats demand to see these documents? Primarily because they know their release would be inappropriate. They can therefore paint the administration as secretive and uncooperative in the confirmation process and hope to build enough public support to get a filibuster through without triggering the Byrd option. Frist and the Republicans should make it clear that this is a pipe dream. Any fail to reach cloture should result in a rule change eliminating the filibuster in all future judicial confirmations as promised in the spring.

It won't happen, of course, because the centrist Democrats realize that this will result in losing their last bit of leverage in the process. The confirmation will continue on track, with a few delays for bloviating, but in the end any filibuster will fail and Roberts will get around 70 votes for confirmation. The only question will be how long it takes to get there.

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Posted by Ed Morrissey at July 27, 2005 6:41 AM

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» Crap So Thick You Could Walk On It from Hard Starboard
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