Your Papers, Please

CALL IT THE ESTRADA/Bolton strategy. One way Senate Democrats may seek to derail, or at least muddy, the confirmation of John Roberts to the Supreme Court is by asking for confidential case memos the nominee wrote while serving as deputy solicitor general under President George H.W. Bush. The current Bush administration will balk at any such request, citing attorney-client and executive privilege. Top Democrats will claim they can't properly judge Roberts without access to those records. And if the Bushies still won't release them? Democrats will put on long faces and claim they have no choice but to drag their feet.

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:

Any 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--a cost that also would be borne by Congress itself. Although we profoundly respect the Senate's duty to evaluate Mr. Estrada's fitness for the federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process.

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).