Judge John Roberts and Executive Order 13233

Thursday, August 11, 2005

The White House is withholding an estimated 50,000 pages of documents relating to John Roberts work as Special Assistant to Attorney General William French Smith from 1981 to 1982, and as Associate White House Counsel during the Reagan administration from 1982 to 1986. Along with those documents, the White House is also reviewing specific memoranda relating to 16 cases Roberts worked on while principal deputy to Solicitor General Ken Starr, during the Bush I administration from 1989 to 1993.

The documents in question were requested by the Senate Judiciary Committee for the upcoming nomination hearings, set to start September 6, 2005. These documents are crucial to the process, especially in lieu of the fact that Judge Roberts has little experience in the District Courts and has few published opinions. Why are these documents being held up and reviewed by the White House? President Bush hides behind the facade that this is the law and the White House has the right to withhold and review documents from previous Presidents. The fact is: it is true! On November 5, 2001 President Bush signed Executive Order 13233 ,giving the White House the power to do just that.

In order to understand Executive Order 13233, we must first look at the law the order affects, the 1978 Presidential Records Act. Among other things, it established that:
* Presidential papers are the property of the public
* Presidential papers are public record 12 years after the President is out of office

Of course, there were exceptions to the rule and in those circumstances (national security) the incumbent President did have the right to withhold and review said documents. Executive Order 13233 changed all of that, giving the incumbent President the right to withhold and review all papers and documents from previous administrations, even if the former President (after review) decides the documents may be made public. What a great deal! There is a law allowing Bush to withhold sensitive political documents because he previously made and passed just such a law saying he can; doesn't that reek of democracy?

So here we have it: the Bush administration nominates a candidate for the Supreme Court, a lifetime position on the most important court in the land, and he then sifts through, withholds, and delays the information that is needed to make a proper vote on the nominee. What are they trying to hide, and how long have they been working at this? This is not an issue of pro or con Judge Roberts. This is simply an issue of giving the Judiciary Committee the proper tools needed to do their job. Don't worry though, the administration promises the documents will be delivered by August 22, 2005, just two week before hearings are set to begin. That should be plenty of time to properly review all 50,000 pages and formulate questions.

By the way, this is not the first time the administration has refused to turn over information for the benefit of the public. Early in 2001, Bush blocked the release of 68,000 pages of confidential communications between then President Reagan and his advisors, despite the wishes of the National Archives and the Reagan library to make them public. Why was this important? The requested papers had to do with people in high ranking positions with the current Bush administration. Ah, democracy at work.

Today, Senate Judiciary Committee chairman Senator Arlen Specter (R-PA) said: "While the privilege is not absolute, it is my conclusion that the absence of any issue of misconduct and the extensive disclosure of numerous other relevant documents prepared by Judge Roberts support the White House conclusion." So let's get this straight; if there is an issue of misconduct then the President should turn over the documents? Who is going to let us know if the documents that the White House holds have misconduct issues in them--Bush?

The administration has also used the excuse of lawyer-client confidentiality for withholding documents of past Presidents. Think about it: if a lawyer represents the President, in his role as President, and the President is a public servant in a public office, then who is the lawyer really working for?

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