Roberts Papers Being Delayed

washingtonpost.com
Roberts Papers Being Delayed
Bush Aides Screen Pages for Surprises

By Jo Becker
Washington Post Staff Writer
Wednesday, August 10, 2005; A01

Thrown on the defensive by recent revelations about Supreme Court nominee John G. Roberts Jr.'s legal work, White House aides are delaying the release of tens of thousands of documents from the Reagan administration to give themselves time to find any new surprises before they are turned into political ammunition by Democrats.

Before Roberts's July 19 selection by President Bush, there was no comprehensive effort to examine the voluminous paper trail from his previous tours as an important legal and political hand under Presidents Ronald Reagan and George H.W. Bush, administration officials said.

Three weeks later, these officials say they recognize that Roberts's record is going to be central to Senate confirmation hearings scheduled to begin Sept. 6, and lawyers and political aides are urgently reviewing more than 50,000 pages -- at the same time denying requests from Democrats for an immediate release.

While the White House plays catch-up in studying Roberts's past, it is facing complaints from some of its conservative supporters about what they feel has been a stumbling campaign for the nominee.

Sean Rushton, director of the conservative Committee for Justice, said in the days after the nomination "there was a drop-off of message and focus."

"Merely saying 'He's a lawyer's lawyer' isn't enough," Rushton said. "This is the moment to explain why so many of us feel so strongly about the judicial system in ways that can change hearts and minds of swing voters who could be added to the Republican column."

Although Rushton said the White House has belatedly begun to "ramp up" its campaign, his complaint was echoed by several other conservative activists. They think Bush aides have reacted defensively about revelations highlighting Roberts's role as an advocate for conservative causes rather than making an unapologetic argument that he was on the right side of these issues.

While serving in the Reagan and Bush administrations, for instance, Roberts argued against affirmative-action quotas and other civil rights remedies that conservatives regarded as reverse discrimination, and he expressed deep skepticism about what he called the "so-called right to privacy" that underpins the constitutional right to abortion.


"They should be embracing those memos," said Bruce Fein, who worked with Roberts in the Reagan Justice Department. "They are squandering the opportunity to move public perception."

The administration had little control over the release of most of the documents that have come to light from Roberts's time as a special assistant to then-Attorney General William French Smith and later as an associate counsel to the president. That's because these papers had already been made public by the Ronald W. Reagan Presidential Library in California before the nomination or had been cleared for release by the National Archives under previous administrations.

But White House aides are exerting full control over the documents still under their authority. Under an executive order signed by President Bush in 2001, the White House has the right to review, and in some cases block, the release of presidential papers from previous administrations. White House lawyers have been dispatched to the Reagan library in Simi Valley, Calif., where they are combing through documents that have not been released.

With the exception of documents that will be withheld for national security or privacy reasons, the White House said it plans to turn over all the documents by the start of the Senate Judiciary Committee hearings, and those that Senate Democrats have identified as priorities as early as Aug. 22.

In the meantime, one senior Republican strategist said, Bush advisers are attempting to anticipate "which documents will be used by people committed to being against John Roberts" and preparing to counter expected attacks. "We will be prepared," the strategist said.

A prominent conservative strategist working closely with the administration on the nomination said some of the carping among Republicans that the White House has been flat-footed in handling questions about Roberts is unfair. Officials could not have carried out an exhaustive review of documents in government archives without involving large numbers of people and tipping their hand that Roberts was a likely nominee.

But the White House's delay in releasing Reagan-era documents has angered Senate Democrats, coming as it has on top of the refusal to disclose documents they have requested from Roberts's 1989-1993 tenure as principal deputy solicitor general in the first Bush administration.

Citing attorney-client privilege, the administration similarly has declined to release roughly 7,700 pages of documents from the same era that The Washington Post requested under the Freedom of Information Act. The requested documents cover advice Roberts gave then-Solicitor General Kenneth W. Starr on cases involving public school prayer, abortion, affirmative action and voting rights.

Sen. Patrick J. Leahy (Vt.), the ranking Democrat on the Judiciary Committee, wrote President Bush yesterday, asking that Reagan-era documents be released on a rolling basis, as the White House completes its review. "Timely cooperation from the Administration is essential to the Committee's preparations for the upcoming hearings," Leahy said.

In other news, a major business organization, the National Association of Manufacturers, is expected to endorse the Roberts nomination, business lobbyists said.

The announcement is likely to be the beginning of a series of trade association nods to the Republican nominee and would represent the start of a first-ever lobbying campaign for a Supreme Court nominee by the corporate lobbying elite.

A spokesman for the association declined to comment. The U.S. Chamber of Commerce is also studying Roberts's record and is considered likely to endorse him, possibly early next month, a chamber official said.

Staff writers R. Jeffrey Smith and Jeffrey H. Birnbaum contributed to this report.