That’s the title of my new Confirmation Tales post, which explores, and draws lessons from, Senate Democrats’ demand in 2005 for all of Supreme Court nominee John Roberts’s records from his service in the administrations of Ronald Reagan and George H.W. Bush. An excerpt:
As a formal matter, the Democrats’ demand for Roberts’s records had no legal weight. The Senate was in Republican hands, and only a request from Senate Judiciary Committee chairman Arlen Specter or from the Senate as a whole could lay the foundation for issuance of a subpoena down the road. But the competing legal arguments—e.g., the executive branch’s interest in preserving the confidentiality of deliberations and legal advice on sensitive matters versus the Senate’s interest in having as much information as possible about a Supreme Court nominee—were beside the point. As is generally the case in fights over judicial nominations, what mattered were intensely political considerations.
The White House wanted Roberts to be confirmed promptly, and it especially didn’t want to give Senate Democrats a possibly appealing excuse for filibustering the Roberts nomination. The White House, I’m told, had reviewed most of Roberts’s White House records in advance of his nomination, and although White House officials anticipated that some of Roberts’s remarks might create a political stir, they were confident that the records would not pose a large problem. So in consultation with Specter, the White House promptly agreed to provide the Senate most of what Democrats were requesting….
The White House stood strong on principle in refusing to provide Roberts’s records as principal deputy solicitor general. Its decision to do so was driven by a previous confirmation battle.
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