the blog of DC Drinking Liberally

September 14, 2005

False Equivalency in Memo Requests


Republicans are now claiming that if Democrats want the release of memos written by Roberts earlier in his career, it’s only fair that they release some memos of their own. The Hill has the story:

Conservative strategists are drafting a letter to Democratic members of the Senate Judiciary Committee demanding the release of hundreds of internal memos detailing contacts between the lawmakers and liberal interest groups opposing John Roberts’s nomination to the Supreme Court.

By planning to press Democrats on the sensitive subject, conservatives seem to be pulling a page from the Democrats’ own political playbook. In the weeks leading up to the confirmation hearings, Senate Democrats have repeatedly called on the White House to give them memos Roberts penned while he was deputy solicitor general in President George H.W. Bush’s administration.

This sounds halfway reasonable, until you think about it for a few seconds. It’s typical Republican strategy: throw dust in the public’s eyes and hope they won’t notice it’s irrelevant. Unfortunately, the Hill puts forth only the Republican side, mentioning one Democratic source who declined to comment and then quoting three separate conservatives who favored the Republican ploy.

The reason the Democrats want memos written by Roberts is because they’re being asked to determine whether he’s fit for a lifetime appointment to the highest judicial position in the nation. Since the memos are examples of his legal work and indicators of his skill, personality, and philosophy, they are relevant to that determination.

The reason the Republicans are asking for the Democratic memos is because they’re hoping to find something in them that will embarrass the Democrats. The memos were not written by Roberts and are clearly irrelevant to whether he should be confirmed. They are in no way equivalent to Roberts’s memos, but they would be equivalent to any memos related to communication between Republicans and conservative groups (say, Focus on the Family or Americans for Tax Reform). I’m taking a wild guess that the Republicans aren’t offering to release any of those memos.


  1. Just one problem with the Administration releasing the memos the Democrats desire. They are protected by attorney client privilege. They can be released with a waiver. Guess what? It’s not W’s call to grant such a waiver. It’s his Father’s. After all, Judge Roberts worked for the Solicitor General under President George H. W. Bush. The Reagan memos were released because Nancy granted the waiver. Nice try though.

    Ray11:03 pm

  2. Roberts wasn’t acting as GHWB’s personal lawyer. He was employed by the US government and paid with our tax money. We are the client. That’s why GWB has hired his own personal lawyer in the CIA leak case.

    In any case, the issue of attorney-client privilege has nothing to do with the point of this post, which is the fake “hypocrisy” charge the Republicans are making against the Democrats. The two sets of memos are not at all equivalent, and the Democratic memos are irrelevant to the case.

    Keith11:27 pm

  3. Update: 9/21: Of course we all know by now that Sen. Leahy is (reluctantly) voting for
    Roberts. That is maddening enough, but what is unforgiveable is that Leahy also said that
    Roberts “left me with the understanding that he would not seek to overrule or undercut the
    right of a woman to choose.” Either Sen. Leahy has been duped or he is seeking to deceive
    his pro-choice constituents who are rightfully worried about Roberts’ stand on Roe.

    Judge Roberts pointedly refused to address Roe, saying only that he recognized a right to
    privacy “to one degree or another” (as did Clarence Thomas) and that he recognized that Roe
    is a precedent deserving of “respect” (as would any judge). Roberts’ support for a right
    to contraception (Griswold v. Connecticut) does little more than establish that he does not
    favor a radical right-wing position on privacy rights.

    A little common sense, Sen. Leahy. Would President Bush REALLY nominate a candidate to
    replace Justice Rehnquist (a known opponent of Roe) if he thought he might actually be
    pro-choice? Would Bush dare alienate his base like that, with his poll numbers as low as
    they are? Another bit of circumstantial evidence: Judge Roberts’ wife is an anti-abortion
    activist (the former head of “Feminists for Life”). Maybe that doesn’t mean anything, but….

    Senators Lindsey Graham and Arlen Specter have been spinning the story this week that Judge
    Roberts might very well uphold Roe. Sen. Graham said that “conservatives might be
    disappointed” (and Specter has actually said he doesn’t know as well, but that’s less
    often quoted) despite the lack of evidence for any conclusion other than we don’t know. Is
    Sen. Leahy joining them in playing us for fools now?

    I will give Leahy credit for one thing he said in his speech today:
    “I was extremely disappointed by the lack of cooperation from the Administration. Although
    we started off well with some early efforts at consultation after Justice O’Connor’s
    retirement announcement in early July, that consultation never resulted in any meaningful
    discussions. It was truncated after a bipartisan meeting with Senate leaders at the White
    House. The President never shared his thinking with us or his plans, as is the nature of
    true consultation. His naming of Judge Roberts as his choice to replace Justice O’Connor
    came as a surprise, not as a result of meaningful consultation.”

    This is an important point. If Democrats don’t stand tough with this next consultation
    process like they DIDN’T last time, then we’re making it that much easier to send us another
    stealth nominee (and it’s worth remembering that Roberts was initially marketed as a
    moderate nominee when the nomination was about Justice O’Connor). While the Bush loyalists
    continue to muddy the water with their calls for Democratic memos, Democrats should care
    about making at least a plausible stand for the people the next time around.

    —Jesse • 4:57 pm, September 21

post a comment

You must be logged in to post a comment.


DCDL is a blog by Washington, DC-area members of Drinking Liberally. Opinions expressed are the writers’, not those of Drinking Liberally, which provides no funding or other support for this blog.

Upcoming Events

See information on the revived DC chapter (2012).

DCDL Member Blogs

DCDL Speaker Links

DC Links

Liberal (Mostly) Blogs

Liberal Groups

Internal Links


Drinking Liberally

Recent Comments

Recent Posts


Search Blog



46 queries. 0.416 seconds