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Roberts' Memos Belong To History--Not White House--A Commentary by Lincoln Caplan

(This essay was originally published in the September 9, 2005, issue of The Hartford Courant.)

The disagreement over whether memos that Judge John Roberts wrote as deputy solicitor general between 1989 and 1993 should be released to the Senate has fresh importance as a result of his nomination to be chief justice. The Bush White House has declined to disclose them because of a vaguely described privilege. Whether that privilege is meant to protect the deliberations of the executive branch or the sanctity of the attorney-client relationship, no major court precedent speaks to the claim. The closest analogies, from the days of the Watergate tapes and the Whitewater inquiry, go the other way.

The dispute is a matter of policy, then. At the Roberts confirmation hearings, it's scheduled to be joined by former Reagan Solicitor General Charles Fried as an advocate for maintaining the memos' confidentiality and by former Nixon White House Counsel John Dean, for disclosing them in the name of openness in government. Both positions are correct - and not hard to reconcile.

When Miguel Estrada was a candidate for a seat on the federal appeals court in Washington, D.C., in 2002, seven respected former solicitors general representing both parties, including Professor Fried, warned the Senate Judiciary Committee about the consequences of requesting memos by Estrada when he was a lawyer in the solicitor general's office. If lawyers on the staff believe their private recommendations may be disclosed publicly, the former solicitors general advised, they "will hesitate before giving their honest, independent analysis," essential to the vigorous pursuit of the country's interests in the Supreme Court.

But it's possible for that candor to be maintained even if memos are released. Documents protected by the government's classification scheme are regularly declassified after time has passed. The Roberts memos are old enough to be history. Their disclosure would be unlikely to jeopardize the solicitor general's office today, any more than the recent disclosure of documents he wrote in the offices of the attorney general and the White House counsel has harmed them.

The little-understood nature of Roberts' job as deputy solicitor general makes the case for release of his memos especially compelling.

The job was created early in the Reagan administration. Solicitor General Rex Lee had recused himself from serving as counsel in a case because, as a private lawyer, he had been involved in one on the same issue. A career deputy stepped in and infuriated political appointees in the Justice Department by the position he took. The Supreme Court agreed with him by 8-1, but the administration concluded that the office needed a second-in-command whom appointees of the president could trust if the solicitor general wasn't available. The Reagan team created a post for a political deputy.

As the court's docket increasingly dealt with such questions as affirmative action, school prayer and abortion, the largely nonpolitical approach long taken by the solicitor general's office was increasingly tinged with politics. Those matters were called agenda cases. In them, whether the solicitor general called for an end to race-based affirmative action or for overturning Roe vs. Wade, it was understood in the Justice Department and at the court that the approach of the office would be different.

Although the solicitor general's office was counted on not to lower its illustrious standards of lawyering, the solicitor general was expected to step out of his role as counselor to the justices and, as part of what Justice Lewis Powell called his "dual responsibility," concentrate on his role as the president's advocate. As counselor, he would offer the court what a Justice Department memo called "a clear vision of what the law requires." As advocate, he would press the policies of the administration he served.

All of the 16 memos Roberts worked on as political deputy that Democrats on the Senate Judiciary Committee have asked for and been denied are about agenda cases. They involve such issues as abortion, school prayer, affirmative action and the death penalty.

Roberts' memos are likely to be of interest to Democrats by showing how he shaped key positions of the first Bush administration. They are also likely to be of interest to Republicans by showing how he withstood pressure from other political appointees, perhaps causing "political heartburn," as Roberts put it at a 2002 conference about the solicitor general's role.

As the political deputy, Roberts was called on to distinguish between law and politics and help resolve the tension between them. His memos would likely tell us a lot about how he handled that challenge. They would add a vital facet to the confirmation process because, more than any American legal figure, the chief justice is counted on to do that.

Lincoln Caplan, editor and president of Legal Affairs magazine and Knight Senior Journalist at Yale Law School, is the author of "The Tenth Justice: The Solicitor General and the Rule of Law" [Knopf, 1987].