Where does John Roberts stand?
Since President Bush nominated Roberts last week to the Supreme Court, Americans have learned that the man who could help shape the nation's laws for decades is a brilliant attorney, a likeable guy and a conservative of some sort. But Roberts' thinking on the most pressing legal issues of the day remains largely a mystery.
That sets him apart from some of the fiery ideologues who were mentioned as potential nominees. Even so, the White House appears far too eager to keep Roberts' record shrouded at precisely the moment when the veil should be rising.
If the administration gets its way, Roberts' papers from four years shaping legal policy and writing Supreme Court arguments in the Justice Department for the first President Bush will be kept secret.
On Tuesday, glimpses of the judge's philosophy came out in older documents, from his days as a young lawyer in the Justice Department and the White House under Ronald Reagan. They show, for example, that Roberts wrote memos defending bills that would have kept the Supreme Court out of school prayer cases and restricted the ability of federal judges to impose busing to desegregate schools. The documents also demonstrate that he championed judicial restraint.
But presidential spokesman Scott McClellan declared this week that releasing Roberts' papers when he was a top deputy to the solicitor general from 1989 to 1993 would violate lawyer-client privilege and chill future government lawyers' discussions.
Roberts' legal career
1979: Graduates from Harvard Law School.
1979-81: Works as a law clerk to two judges, including Supreme Court Justice William Rehnquist.
1981-82: Serves as a special assistant to Attorney General William French Smith in the Reagan administration.
1982-86: Works in the Reagan White House Counsel's office.
1986-89: Private practice at a major Washington law firm.
1989-93: Top deputy to the U.S. solicitor general under President George H.W. Bush, where he helps craft the administration's legal positions in Supreme Court cases.
1993-2003: Private practice.
2003-present: Judge on one of the nation's 12 federal appellate courts, the legal rung just beneath the Supreme Court.
Though lawyer-client confidences shouldn't be disturbed lightly, secrecy here is misplaced. The privilege's thrust is to protect confidential information that clients tell their lawyers. But Roberts wasn't working for a private client. He was a federal employee, representing the U.S. government, in essence the public. Similar papers written by a previous court nominee, Robert Bork, were turned over to the Senate in 1987.
Roberts' work as a White House lawyer already is open. It's tough to argue that those documents should be public while Justice memos are not.
Senators and the public have a compelling interest in knowing Roberts' thinking on past hot-button cases that still roil the nation, such as abortion rights and school prayer.
Did Supreme Court briefs he co-signed represent his thinking on these issues or just the position of the first Bush administration? Is Roberts within the broad judicial mainstream? Does he have respect for legal precedent? The memos might tell us.
Supreme Court confirmation battles have too often deteriorated into nasty feuds in which neither the public nor the Senate learns about nominees whose decisions would affect the everyday lives of nearly every citizen. This week, the Roberts nomination took a turn in that direction.
The administration is urging a quick confirmation. Senate Democrats are calling for documents that shine light on key issues, no matter when they were written. It looks like an opportunity for compromise, the best way to get a justice truly worthy of sitting on the highest court in the land.