Brian Greer: Shedding Light on Roberts’ Record — The Robert Jackson Opinion


The other day Josh Marshall asked an important question about the growing controversy over giving the Senate Judiciary Committee access to the memos John Roberts wrote when he worked in the Reagan and Bush 41 Administrations. In short, Josh wondered why the Senate should be any less informed about Roberts’ past than the President. The answer, obviously, is that it shouldn’t.
For those of you not following the issue, the Bush 43 Administration has decided to release Roberts’ documents from when he served as a lawyer in the Reagan White House and Justice Department (some of which were already publicly available at the Reagan Library). However, the White House is steadfastly refusing to release any documents stemming from Roberts’ tenure as Deputy Solicitor General during the Bush 41 Administration. Specifically, Senate Democrats want to see memos relating to 16 cases that Roberts participated in while in the Solicitor General’s office. These memos may reveal much about Roberts’ personal views on important issues like the right to privacy, affirmative action, environmental protection, and the separation of church and state.
There’s a lot that should be said about this issue. But for now I just want to briefly highlight a piece of information I provided to Steve back during Alberto Gonzales’ nomination to be Attorney General, which Steve posted here.
This passage is from a 1941 legal opinion issued by Robert Jackson when he was Attorney General. Jackson’s views on this topic are highly relevant. Jackson, who later went on to be a Supreme Court Justice and Nuremberg prosecutor, is one of the rare legal figures who’s revered on both the left and right. He also probably understood the need to protect executive branch deliberations better than anyone. Before joining the Court he spent most of his legal career as a government attorney, and his concurring opinion in Youngstown Sheet and Tube Company v. Sawyer (1952) is the definitive judicial statement on the separation of powers doctrine. And most significantly for these purposes, Jackson served as Solicitor General from 1938 to 1940, so he was keenly aware of the importance of protecting that office’s internal deliberations.
In fact, the primary purpose of this Attorney General opinion was to defend the executive branch’s refusal to turn over internal Justice Department investigative reports to a congressional committee. But Jackson added this key passage at the end:

Of course, where the public interest has seemed to justify it, information as to particular situations has been supplied to congressional committees by me and by former Attorneys General. For example, I have taken the position that committees called upon to pass on the confirmation of persons recommended for appointment by the Attorney General would be afforded confidential access to any information that we have — because no candidate’s name is submitted without his knowledge and the Department does not intend to submit the name of any person whose entire history will not stand light.

40 U.S. Op. Atty. Gen. 45 (1941).
So, Josh, you can see you’re in good company in believing the Senate should have access to the same information the Bush Administration has in its possession. Jackson, in his trademark eloquence, couldn’t have expressed that position any better. And like Jackson, I think it’s reasonable to reach an accommodation here where the Senators and their staff get access to Roberts’ SG documents on a confidential basis. Unfortunately, compromise isn’t something this Administration is known for, particularly when it comes to other branches of government. Instead, this is just another example of Bush’s attempted parliamentarization of Congress, which we’ve seen with Bolton, the nuclear option, the prescription drug benefit, and so many other shameful episodes.

— Brian Greer
is an attorney in Washington, DC.