Clash likely over Roberts documents

WASHINGTON -- The White House signaled yesterday that it does not intend to release documents produced by Supreme Court nominee John G. Roberts Jr. during his service in the Reagan and George H. W. Bush administrations, setting up a clash with Democrats who are insisting that internal memos prepared by Roberts be released for lawmakers to review.

Fred D. Thompson, the Bush administration's point person for shepherding Roberts's nomination through the Senate, said the administration feels strongly about the need to shield such documents from review to maintain candor in internal deliberations. He said the documents are protected by attorney-client privilege and added that the White House does not intend to waive that privilege.

''The administration has been pretty consistent on that -- in fact, I think very consistent -- in that those things will not be forthcoming," said Thompson, a former Republican senator from Tennessee. ''We hope we don't get into a situation where documents are asked for that folks know won't be forthcoming."

Democrats have not yet made any formal requests for documents, but have indicated they are likely to make broad requests to review paperwork related to Roberts's work record. Roberts has served as a federal appeals court judge for less than two years and spent most of his career working for private clients and Republican administrations, giving senators a limited written record upon which to review his judicial philosophy.

Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, noted that other nominees to influential posts, including Chief Justice William H. Rehnquist, have in the past complied with requests for materials they wrote in confidence while working for an administration. He said attorney-client privilege should not apply to an employee of the solicitor general's office, where Roberts worked under President George H. W. Bush.

''There is so much precedent for that," Leahy said on ABC's ''This Week." ''It's a total red herring to say, 'Oh, we can't show this.' And of course there is no lawyer-client privilege. Those working in the solicitor general's office are not working for the president. They're working for you and me and all the American people."

The documents issue is emerging as the biggest potential stumbling block to an easy confirmation for Roberts in the Senate. Democrats have had mostly praise for Roberts's qualifications, but have expressed concern that his public record is too scant for them to make a final judgment.

The Bush administration's refusal to release internal documents led to a standoff that caused Bush nominee Miguel Estrada in 2003 to withdraw his nomination to the Court of Appeals for the District of Columbia -- the same panel Roberts now serves on -- in the face of strong Democratic opposition. Democrats have also blocked President Bush's choice for ambassador to the United Nations, John R. Bolton, this year because document requests have not been fulfilled.

Attorney General Alberto R. Gonzales said that he administration will seek to reach an accommodation with senators regarding documents, and that requests will be reviewed on a case-by-case basis. But he indicated a reluctance to release internal documents that would ''chill communications" within the Justice Department.

''This is of course very sensitive, very deliberative information that you're talking about," Gonzales said on ''Fox News Sunday."

''Generally, that's not something that the administration or any White House would be inclined to share, because it is so sensitive."

Under President Reagan, Roberts served as an aide to Attorney General William French Smith from 1981 to 1982 and to White House counsel Fred Fielding from 1982 to 1986.

Between 1989 and 1993, he was the principal deputy solicitor general in the George H. W. Bush administration, where he helped form administration positions in cases that went to the Supreme Court. Roberts then worked in private practice before being confirmed by the Senate for his current judgeship in 2003.

Richard J. Durbin of Illinois, the Senate Democratic whip, said on ''Meet the Press" that lawmakers need to ''fill the empty vessel" of Roberts's record with documents that shed light on his thinking. ''We need to know things about him," said Durbin, who is a member of the Judiciary Committee. ''The two years on the bench in the District of Columbia don't tell us [enough]."

The Sunday talk shows also previewed a debate shaping up over the types of queries Roberts should be expected to answer when he is questioned by the Senate Judiciary Committee in August or September. Democrats said they intend to push Roberts to clarify his position on whether there should be a constitutional right to abortion.

''It's a question about the values and principles that guided Roe v. Wade," said Durbin, who added that he will oppose Roberts if he tells him that he is not committed to upholding a constitutional ''right to privacy" -- the underpinning for the 1973 Roe decision that established a constitutional right to abortion.

''In this situation, I think we have a right to know where John Roberts stands when it comes to fundamental issues of privacy and personal freedom," Durbin said.

But Thompson said he considers questions on how individuals would have ruled on specific cases to be ''inappropriate" for nominees to answer. ''They can ask any question they want to. But he's got to decide, based on ethical considerations and past history, what he can properly go into," said Thompson, who is an actor on the television series ''Law & Order."

''There's a line which they can't properly cross just to bargain with the Senate, as it were, to get a job. They can't be put in that position."

Rick Klein can be reached at rklein@globe.com.