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Distinction between Roberts' released, withheld writings questioned

WASHINGTON—Legal scholars and politicians from both political parties say they're puzzled by President Bush's decision to release some documents but not others from Supreme Court nominee John Roberts' work in past government jobs.

For the second consecutive day, White House aides said Wednesday they wouldn't release records from Roberts' service as deputy solicitor general under President George H. W. Bush in order to protect candid deliberations between that office and the executive branch.

But several legal experts said they see little distinction between Roberts' frank notes as a Reagan administration attorney, which have been released, and his later writings under the first Bush, which the White House will not release.

"I don't find the distinction persuasive," said Michael Dorf, a Columbia University Law School professor. "The relative nature of it can lead someone conspiracy-minded the impression they (Bush administration) have something to hide. But I'm not one of them."

Democrats continued to demand the release of all documents Roberts produced during his government tenure, saying they're necessary to determine his views on legal issues.

"The White House knows that their position on the deputy solicitor general papers is not sustainable for a position as important as the Supreme Court of the United States," said Sen. Edward Kennedy, D-Mass., a member of the Senate Judiciary Committee. "We have four weeks to examine John Roberts' record, and for the White House to set up a confrontation is counterproductive to proceedings on this nomination in a dignified manner."

The White House release-withhold strategy left even some Republican supporters of Roberts bewildered—though for reasons different from the Democrats.

"They may have their reasons in particular as to why they think some documents should be protected and others ... ," said Sen. Rick Santorum, R-Pa. "My opinion is that they should all have attorney-client privilege, and that is a great concern of mine."

White House officials say the difference between the documents is that Roberts' work as a Reagan-era White House lawyer had already been released under the Presidential Records Act, which calls for records to be made public 12 years after an administration ended.

Roberts' work as deputy solicitor general isn't covered by the act, White House officials say, but instead by the Federal Records Act, which they maintain doesn't require that they be made public.

"Seven former attorney generals, in a letter, stated publicly that to make that information available would have a chilling effect on their ability to receive candid and honest and thorough advice from their staff attorneys," said White House spokesman Scott McClellan.

But some legal scholars aren't convinced. John Anthony Maltese, author of "The Selling of the Supreme Court" and a University of Georgia professor, said he's not sure what the difference is between Roberts' Reagan-era writings and his work for the first Bush administration.

"I'm sure a large part of this is a concern about setting a precedent for the insistence of certain types of documents rather than what's in them," he said. "It's a recent phenomenon for committees to seek these documents."

David Alistair Yalof, author of "Pursuit of Justice," another book about the confirmation process, believes the White House strategy behind releasing some papers but not others is to force the issue into the courts, where a decision would be delayed.

"The law allows the administration to make the (privilege) argument, but it also allows others to seek the information either through the Freedom of Information Act or public pressure," said Yalof, a University of Connecticut professor. "It might take years for courts to sift these things through, which is to the advantage of the people holding the documents."


(c) 2005, Knight Ridder/Tribune Information Services.

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