Your Papers, Please

This is all hypothetical, of course. But the use of (disingenuous) document-request tactics to hinder presidential appointments has a long pedigree. Such tactics are being deployed now to forestall John Bolton’s nomination as U.S. ambassador to the United Nations. More to the point for Roberts, they are what blocked the ascent of another veteran of the solicitor general’s office, Miguel Estrada, to the D.C. Circuit Court of Appeals.

Take the Estrada precedent first. President Bush tapped the Washington lawyer for an appellate court slot in May 2001, shortly before Vermont’s Jim Jeffords bolted from the GOP and gave Democrats control of the Senate. Estrada critics could have gone any number of ways. But leading Democrats took a procedural tack. They asked to see internal position papers Estrada had penned during his time in the solicitor general’s office. The White House refused, avowing the need for privacy in such matters.

On that score, the Bushies received succor from seven former solicitors general, including three–Seth Waxman, Walter Dellinger, and Drew Days–who served under President Clinton, and one–Archibald Cox–who served under President Kennedy. Along with Republicans Robert Bork, Charles Fried, and Ken Starr, they signed onto a June 2002 letter, drafted by Waxman, attesting to the sensitivity of documents prepared in the solicitor general’s office:

Senate Democrats were undeterred. At a Judiciary Committee hearing on September 26, 2002, Chuck Schumer and Ted Kennedy pressed Estrada. “Knowing that you are a good lawyer and seeing you’re a good lawyer is not enough,” Schumer said. “I would be reluctant to support moving your nomination until we see those memoranda.” Kennedy was less diplomatic. When Estrada said he’d “think about” the release of documents, Kennedy tersely replied, “Well, you’d better think about it.”

Estrada made the most salient point. “If it were up to me as a private citizen,” he told Schumer, “I would be more than happy to have you look at everything I’ve done for the government or in private practice.” But it isn’t that simple. The solicitor general represents the president before the Supreme Court. So while Estrada was lawyering for the solicitor general’s office, the U.S. government was in effect his client. Those memoranda wouldn’t be his to turn over even if he wished to.

The principles at stake here have deep common-law and constitutional roots, argues C. Boyden Gray, White House counsel under Bush I and now chairman of the Committee for Justice (a conservative counterweight to People for the American Way). Should the White House divulge confidential Justice Department memos, Gray says, “It would totally cut off any kind of internal debate.” That is, lawyers in the solicitor general’s office would be much cagier with their advice, knowing their private scribbles could become fair game in a subsequent confirmation fight. Gray draws a parallel to press freedom: “It’s like asking [reporters] for their preliminary drafts.”

Maybe. But it helped torpedo Estrada. And, so far, a similar ploy has kept John Bolton away from the U.N. His Democratic critics had a laundry list of gripes with Bolton (his alleged browbeating of subordinates, his low opinion of the U.N., his general hawkishness). But the ostensible justification for their ongoing filibuster is a quest for documents. Over his four years in the State Department, Bolton apparently made ten requests for the names of U.S. officials recorded in National Security Agency intercepts. Democrats suggest Bolton could have used the NSA info to further his turf wars at State (although State Department officials all told made around 500 such requests over the same period).

Thus their rallying cry: Fork over the intercepts, or else. “We’ve told them what we’ve wanted,” Senate Democratic leader Harry Reid said on CNN last month. “If they want John Bolton as ambassador to the United Nations, give us this information. If they don’t, there will be no Bolton.” The White House hasn’t budged. Absent a recess appointment, Bolton will remain in limbo.

Will Democrats try the Estrada/Bolton strategy on Judge Roberts? Sure sounds like it. Prior to the Roberts pick, the Washington Post‘s Mike Allen reported Senate Democrats’ three probable “lines of attack” on Bush’s nominee. One: claim insufficient consultation by the White House. Two: paint the nominee as a right-wing ideologue. Three: demand the administration produce internal documents to shed more light on the nominee’s record.

Bush obviated the first by meeting with Democrats. The second won’t work, since Roberts boasts a gold-plated CV, a short paper trail on the bench, a bipartisan support network of legal heavyweights, and a venerable career in the Washington establishment. That leaves the third. Schumer, perhaps the most aggressive Democrat on the Judiciary Committee, wasted no time in affirming that he would pursue this angle. The very night Bush tapped Roberts, Schumer laid out “the threshold question”: “Will he be forthcoming in both answering questions and making available documents about his previous record?”

The Schumer-Kennedy Democrats “were emboldened by Estrada,” says a senior GOP Senate aide, and even “more so by Bolton.” But Roberts presents a tougher target. For one thing, he’s a higher profile nominee than Estrada. And unlike Bolton, he is hardly a partisan lightning rod.

Thus, Democrats’ best hope of tripping him up may hinge on document requests. Asking for internal case memos from the solicitor general’s office–memos they know the White House won’t disclose–will enable Schumer & Co. to decry Bush’s “stonewalling.” It will turn the confirmation process into a debate over executive privilege, rather than a debate over John Roberts. Best of all, it’s a strategy that makes the aggressor look like the aggrieved. Which may be the best Democrats can hope for in this case.

Duncan Currie is a reporter at The Weekly Standard.