A compromise on Roberts' papers?

The White House agrees to turn over some of Roberts' papers -- but not nearly enough.

Published July 26, 2005 1:25PM (EDT)

A week into the fight, the White House is managing the John Roberts' nomination with all the political skill you'd expect from five years of waiting for it. Democrats, meanwhile, seem to have found no major rallying point -- nothing in the nominee's biography, in his legal papers or in the GOP's handling of the nomination -- around which to mount a campaign to oppose him. And now, though we hate to say it, Democrats' main argument to date -- that the White House should release all Roberts' papers from his work in the Reagan and first Bush administrations -- appears to be fizzling.

As the New York Times reports this morning, the Bush administration has decided to turn over to the Senate all of Roberts' documents from 1981 to 1986, a period when Roberts worked in the attorney general's office and as an assistant counsel in the Reagan White House. Anonymous White House officials tell the Times that they see nothing in the documents -- which total 50,000 pages -- that could pose a problem for Roberts' confirmation. But citing a principle of attorney-client privilege, the administration will not release any papers from the period between 1989 to 1993, when Roberts worked as a deputy to Kenneth Starr, George H.W. Bush's solicitor general.

To be absolutely clear: The White House is not really compromising here. Republicans will call this a compromise, but it isn't. The White House is turning over the absolute minimum it can, and Democrats would be fighting a noble fight to get more papers from Roberts' solicitor general days. Those papers would likely shed light -- more light than we've had so far, certainly -- on Roberts' legal philosophy, especially with regard to sensitive issues such as abortion. The period in question covers the brief Roberts coauthored in Rust vs. Sullivan, in which he wrote: "We continue to believe that Roe was wrongly decided and should be overruled ... The Court's conclusion in Roe that there is a fundamental right to an abortion ... finds no support in the text, structure, or history of the Constitution." Roberts has argued that this blockbuster statement is not necessarily his personal view, but the view of his client at the time -- i.e., Reagan's White House. Examining Roberts' papers from this period may give us a clue as to what Roberts really thinks.

But however noble the fight for these papers, as the Times points out, many Democrats worry it would be a bruising fight for their side. Especially since they don't have the numbers to defeat Roberts, the left is wary of mounting a battle like the one it fought on Miguel Estrada, the judicial nominee whose confirmation Democrats managed to scuttle over the documents issue. Estrada was looking for a seat on an appeals court, and voters weren't watching that fight. For the Supreme Court, the same rules won't apply.

By Farhad Manjoo

Farhad Manjoo is a Salon staff writer and the author of True Enough: Learning to Live in a Post-Fact Society.

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