Last Friday, the Justice Department denied a request from members of the Senate Judiciary Committee to produce documents related to Judge Roberts’s time in the Solicitor General’s office. The debate over whether the Administration will release documents related to Roberts’s work as a government lawyer can seem technical and boring. However, these documents are vital to finding out about Judge Roberts’ legal philosophy, his views on important issues, and his record—all of which the Senate has to understand before it can decide whether he should be a Supreme Court Justice.
A sobering example of why it is so important that relevant documents be made public came just a few years ago, with the nomination and confirmation of Jay Bybee to the Ninth Circuit Court of Appeals. President Bush nominated Bybee to a lifetime seat on the court in May 2002. In August 2002, Bybee, who was then the Assistant Attorney General for the Justice Department’s Office of Legal Counsel, signed a memo arguing that it could be justified for the United States to torture detainees in some circumstances. The memo also defined torture in an incredibly narrow way, and argued that the President can ignore U.S. laws when acting as Commander-in-Chief.
These arguments were legally dubious and very controversial. Yet when Bybee had his Senate confirmation hearings in February 2003, nobody asked him about his memo—because no one knew about it. The memo was not publicly available, and it was not released to the Senate before Bybee’s hearings despite Senators’ requests for “unpublished Office of Legal Counsel opinions”—requests that, if they had been granted, would have included the torture memo. Senators still asked Bybee numerous questions about his work for the Justice Department, but Bybee refused to answer on the grounds that the information was confidential. In May 2003, Bybee was confirmed as a federal judge on the 9th Circuit Court of Appeals.
It wasn’t until 2004, nearly a year after Bybee’s confirmation, that the existence of the “torture memo” was leaked to the press. After an outcry from military, religious, and human rights groups, the Administration and the Justice Department repudiated the memo. Attorney General Gonzales, who was the recipient of the Bybee memo in his then-position as White House Legal Counsel, was grilled about the memo during his confirmation hearings, and he took pains to distance himself from its conclusions.
Of course, by this time it was too late to ask Judge Bybee about his memo, because he was already safely sitting in a lifetime seat on a federal court.
Let’s hope the Senate doesn’t make a similar mistake with Judge Roberts. Of course, we’re not saying there is the equivalent of the “torture memo” hiding in the boxes of unreleased documents from Roberts’ time in government service—but we can’t say there isn’t one, either. Only after the Senate has been able to review those documents will Senators be able to gauge just what kind of Justice they, and the American people, will be getting if they confirm John Roberts to the Supreme Court.
