SENATOR CHARLES SCHUMER of New York has led the charge for Senate Democrats over the last several days in demanding the release of thousands of pages of highly confidential internal executive branch memos written by Supreme Court nominee John Roberts when he worked as a deputy solicitor general in the first Bush administration. These document requests are unprecedented in their nature and scope and call on the Bush administration to waive executive privilege and attorney-client privilege to a degree that no other administration has ever previously been asked to do.
Republicans are skeptical of the Schumer request and suspect the senator is on a fishing expedition to try to dig up something with which to oppose the hitherto unassailable Roberts nomination. Republicans have solid reason to suspect Schumer of this, since he was overheard saying on a cell phone that he was going to go to war against whoever the president nominated before Roberts was even nominated.
Evaluation of whether Schumer is or is not on a fishing expedition is impossible given the public record as it stands now. Accordingly, Senate Republicans and the administration should call on Senator Schumer to immediately release and make public all conversations and emails between the senator and his staff, between Schumer staffers and outside left-wing advocacy groups, and between Schumer staffers themselves relating to the Roberts nomination. Schumer should also be required to release phone records of all telephone and cell phone calls that were placed between his office and outside advocacy groups since the Roberts nomination.
It is critically important that these internal Schumer-office documents be made public to determine whether the senator's demand for the Roberts's solicitor general's office memos is a good faith demand based on a genuine concern about positions Roberts may have taken as an executive branch lawyer or whether the senator is on a fishing expedition, as his cell phone declaration of war leads many on the right to suspect. There is simply no way given the public record as it currently stands to determine whether Schumer's request even meets the threshold for deserving serious consideration.{/satire off}
IN MY EXPERIENCE as an executive branch staffer, I became persuaded that some senators and congressmen simply do not appreciate how intrusive and improper their document requests are in terms of the chilling effect they have on the internal deliberations of a co-equal branch of the government. I think that is the case here.
If Schumer is really committed to the cause of openness in government and of transparency, he will not hesitate to make available his internal office records as described above. If Schumer refuses to honor this request, then his opponents are entitled to reject the senator's request for the solicitor general's office documents on the grounds that he is applying a level of disclosure from executive branch officials that he is unwilling to live by himself.
Steven G. Calabresi is a professor of law at Northwestern University.
