WSJ: The Roberts Docu-Drama - The White House hurts its own executive privilege case.

...[T]he eight Democrats on the Judiciary Committee sent a thank you letter to President Bush that began with the words, "We are disappointed," and went on to label as "ill-advised" the Administration's decision not to release Judge Robert's papers from his years as Deputy Solicitor General under the first President Bush....

Ted Kennedy issued a separate statement demanding the release of the Solicitor General papers and asserting: "There is no privilege, there is no rule, and there is no logic that would bar us from getting these documents."

The Senator from Massachusetts is wrong about privilege, but he has a point about White House logic. By authorizing the release of documents from Judge Roberts's work in the Reagan Justice Department and White House Counsel's office, the Bush Administration had made it that much harder to refuse Democratic demands for his later work product from the Solicitor General's office. More important, it makes it harder for the White House to defend the vital constitutional principle of executive privilege.

This is not some fine legal matter. It is essential for the workings of government that decision-makers hear the candid views of the people who work for them. That won't happen if they believe Dick Durbin might one day be reading from their memos on the Senate floor. Or, as Clinton White House Counsel Jack Quinn put it the other day, if the public has unfettered access to the advice that Presidents get, "Presidents won't get very good advice."

In 2002... every living former SG signed a letter of protest. "Our decisionmaking process required the unbridled, open exchange of ideas--an exchange that simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure," they wrote....

Bush should appoint some current or former 'Rat Senator to a token post (how about Ambassador to Chad?) that requires Senate confirmation. Than have some GOP Senator (one of the freshman might do this) demand copies of every bit of internal and political paperwork that was ever produced in his office and publicly threaten to leak it to the (Washington) Times and (New York) Post. Nothing in the Constitution regarding Senate confirmation differentiates how the Senate should deal with Supreme Court seats vs. any other position regarding the process. If the Senate can demand anything from the Executive Branch of another party it certainly can demand anything from another party's branch of itself. When the 'Rats scream, drown them in hypocrisy.

Well, if it's public domain let the 'Rats like Kennedy and Schumer do the leg work. The Bush administration should not be obliging the 'Rats in any manner ... especially in light of the fact it's unprecedented to release info on a SC appointee by the President's office.

-- Supreme Court nominee John G. Roberts "will be expected to answer fully" any questions about his views on controversial issues that could come before the court in the future, according to Sen. Edward Kennedy (D-Mass.). But, during the 1967 confirmation debate over future Justice Thurgood Marshall, Kennedy argued that Supreme Court nominees should "defer any comments" on such matters.

In his June 20, floor speech responding to President Bush's nomination of Roberts to the Supreme Court, Kennedy argued that senators "must not fail in our duty to the American people to responsibly examine Judge Roberts' legal views."

Kennedy listed a number of issues, including workers' rights, health care and environmental regulations, that he considers important.

"Each of these issues, and many others, [have] been addressed by the Supreme Court in recent years," Kennedy said. "In many of these cases, the Court was narrowly divided, and these issues are likely to be the subject of future Court decisions in the years to come."

The Massachusetts Democrat said he is troubled by Roberts' strict interpretation of the Constitution's "commerce clause" and added that "other aspects of Judge Roberts' record also raise important questions about his commitment to individual rights.

"Because Judge Roberts has written relatively few opinions in his brief tenure as a judge, his views on a wide variety of vital issues are still unknown," Kennedy charged. "What little we know about his views and values lends even greater importance and urgency to his responsibility to provide the Senate and the American people with clear answers."

Kennedy listed examples of conservative positions Roberts had argued on behalf of both private clients and as the principle deputy solicitor general for the administration of President George H. W. Bush.

"Judge Roberts represented clients in each of these cases, but we have a duty to ask where he stands on these issues," Kennedy continued. "I join my colleagues in the hope that the process will proceed with dignity. But the nominee will be expected to answer fully, so that the American people will know whether Judge Roberts will uphold their rights." See Video

During the 1967 confirmation debate over the nomination of then-Solicitor General Thurgood Marshall to the Supreme Court, however, Kennedy held a different view about the types of questions the nominee should be required to answer. Film footage obtained by Cybercast News Service shows Kennedy's response to the prospect of senators asking Marshall questions about how he might rule in future cases.

"We have to respect that any nominee to the Supreme Court would have to defer any comments on any matters, which are either before the court or very likely to be before the court," Kennedy said during a 1967 press conference. "This has been a procedure which has been followed in the past and is one which I think is based upon sound legal precedent." See Video

Marshall was serving President Lyndon Johnson as solicitor general when he was nominated in the summer of 1967. Prior to that, he had been an attorney for the NAACP, and had successfully argued the Brown v. Board of Education Supreme Court case that racially integrated the nation's public schools. Marshall's nomination was opposed by Southern Democrats who feared his confirmation would further the cause of racial equality in the United States, but he was confirmed by a vote of 69 to 11 on Aug. 30, 1967.

Multiple calls to Sen. Kennedy's office seeking comment for this report were not returned.

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