WASHINGTON - The White House won't release documents that Supreme Court nominee John Roberts prepared while working in the solicitor general's office from 1989-1993, even if senators who will judge his nomination request them, a senior administration official said.
Some documents from Roberts' work for two previous Republican presidents were being released today by the National Archives, and at the urging of Senate Judiciary Chairman Arlen Specter, R-Pa., the White House was asking the Reagan presidential library to expedite the review of other Roberts records to determine what can be released.
But the White House will claim privilege for the work Roberts performed while serving as principal deputy solicitor general in the administration of former President George H.W. Bush.
"The Department of Justice will retain the confidentiality of those internal memos," said the official, who was not authorized to speak on the record.
With President Bush's first chance to shape the Supreme Court at stake, the White House is hoping to avoid the kind of showdown with Democrats over document requests that has stymied Senate confirmation of some of the president's other high-profile nominees.
Asked repeatedly to say whether the administration was open to making Roberts' writings as a former administration lawyer available, White House press secretary Scott McClellan avoided saying "no" outright on Monday.
"We want to work with the members of the Senate to make sure that they have the appropriate information so that they can do their job," McClellan said.
The documents issue could be critical as the Senate prepares to decide whether to confirm Roberts as Bush's replacement for retiring Justice Sandra Day O'Connor.
The documents being released today were from Roberts' tenure as special assistant to Attorney General William French Smith during the Reagan administration. For the first President Bush, Roberts held a key position in the solicitor general's office, which argues cases before the Supreme Court on behalf of the administration.
Some of Roberts' records already are publicly available at the Reagan library. Others still need clearance from representatives of the current president and former administrations, as required by law, and archivists.
Democrats have offered no indication that they plan an all-out battle against Roberts. But since his two-year tenure on the federal bench has left him with a limited public record, they have hinted they may seek memos, briefs and other documents he wrote while working for Reagan and the first President Bush to shed more light on his stands on such issues as abortion, the environment and federal jurisdiction.
Sen. Joseph Lieberman, D-Conn., one of the centrists who stopped an earlier Senate fight over Bush's judicial nominees, urged the White House to be flexible with document requests.
"I'd hate to see us get into a battle over whether the administration was going to share documents instead of the basic question of is Judge Roberts deserving of confirmation to be a justice of the United States Supreme Court," Lieberman said Monday after meeting with the nominee.
No Democrats have said publicly they will fight the Roberts nomination. But Sen. John Kerry, D-Mass., last week called for the White House to release all of Roberts' working papers from his time during the Reagan and George H.W. Bush years.
Democrats on the Senate Judiciary Committee have not yet revealed which documents they will ask for. Sen. Dianne Feinstein, D-Calif., suggested Monday she didn't think his solicitor general memos would be very important "unless it relates to confirming something that becomes a major question."
Sen. Patrick Leahy, top Democrat on the Judiciary Committee, said material written in confidence while serving in an administration has been provided in the past - for instance by Reagan when he nominated William H. Rehnquist for chief justice.
The Senate's majority Republicans are expected to support the White House's decision. "I don't think it is appropriate for a lawyer to release documents they've produced for their clients," Sen. Sam Brownback, R-Kan., said Monday.
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