September 12, 2005

Judge Roberts' Memos

Theodore Olson has an excellent editorial in this morning's Opinion Journal. In his editorial, he refutes the Democrat's assertion that all memoranda John Roberts wrote as Deputy Solicitor General should be made public:

As to the memoranda John Roberts wrote as deputy solicitor general, they are sensitive, deliberative analyses of cases pending at the time, inseparable from memoranda written by career Justice Department personnel. They candidly evaluate the positions taken or urged by government lawyers, comment on judicial decisions, and evaluate the strengths of the government's case. They are developed with the expectation that they will remain confidential. In Judge Roberts' case, they may even contain assessments of the justices with whom he may soon be serving. Failure to protect the integrity of these materials will not only damage the public interest in top-flight government lawyering, but will forever inhibit future officials from frank internal assessments of litigation strategy.

Solicitors-General for Presidents Kennedy, Johnson, Nixon, Ford, Reagan, Clinton and both Bushes have firmly emphasized the vital importance of protecting the confidentiality of these records. No partisan impulse motivated the uniform public expression of that position, and there is no justification for breaking with that tradition. The price for doing so will be paid by every future president--and the nation.

Read it all. Olson's arguments about the need for confidentiality are strong and should not be easily discounted.

The Democrats argue that the memoranda must be disclosed so that the public can get a better understanding as to how a Justice Roberts would rule on certain important issues.

If we are truly interested in understanding what Judge Roberts believes, however, then a review of these memoranda will not necessarily provide us with such an understanding.

It is important to remember that Judge Roberts wrote these memoranda as an attorney representing the White House. As such, Judge Roberts wrote each of these memoranda with an understanding that his client wanted an analysis as to how certain cases would affect that administration's political views.
As an attorney, I can attest that I am often put into the position of analyzing certain issues or taking certain positions based upon the particular needs of my client. Some clients will, in fact, ask me to take sides and advocate for a particular result so that they can assess the strength of the arguments on one side of the issue. While I often will view certain issues as more "important" or do not personally agree with the positions of my client, I will nevertheless focus on those issues that my client is concerned about. After all, my client is the one "paying the bills".
Moreover, attorneys are taught to "write to the audience". In other words an attorney must know who will be reading his/her writing and customize the tone and language of the writing to fit that particular audience. For example, an attorney would likely address the issue of abortion differently in memos to the Bush administration and the Clinton administration based upon those administration's views towards the subject. The memoranda could easily be taken out of context by uninformed outsiders such as the press, the senators, the special interest groups, etc.
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