Nomination of John Roberts

NOMINATION OF JOHN ROBERTS -- (Senate - July 28, 2005)

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Mr. CORNYN. Mr. President, I will spend no more than 10 minutes to comment on the President's nomination of John Roberts to the U.S. Supreme Court.

Several weeks ago, shortly before the President nominated Judge Roberts, we were informed that the strategy on the other side of the aisle was a three-pronged strategy: one, to claim that there was inadequate consultation; two, to somehow paint the nominee as extreme; and three, to use document requests to go on a fishing expedition to delay the confirmation for as long as possible.

Before this nominee was proposed by the President, there was unprecedented consultation with both sides of the aisle, and because this nominee is clearly in the mainstream of American jurisprudence and has a distinguished record of public service as a judge and as an advocate on behalf of the United States in the Solicitor General's Office and elsewhere, it looks as if we already have jumped to prong three, the first two prongs being unavailable.

Some members on the other side of the aisle are already intimating that, unless the White House finds and turns over every piece of paper written by Judge

Roberts when he was a Government lawyer, they cannot properly assess his qualifications to the U.S. Supreme Court. This is preposterous. The public record on Judge Roberts is already immense. It is telling that opponents of this nomination, or at least those who want to slow it down unnecessarily, have not even had a chance to review the documents that are already available. Yet they are calling for more documents. If history is any teacher, and I believe it is, this may indeed be the beginning of a case of moving the goalpost each time a document request is made and then satisfied, to then ask for more, which then leads to another request for more, and a game that the nominee cannot win because the goalposts move each time.

I would like to remind my colleagues what we already have. Judge Roberts was confirmed to the D.C. Court of Appeals just 2 short years ago. He testified extensively before this Senate on two previous occasions, and these transcripts total 14 hours of testimony. In conjunction with those hearings, he completed more than 100 pages of responses to written questions posed to him by Senators on the Senate Judiciary Committee. If this were not enough, the Senate already has before it various legal briefs and oral argument transcripts from the hundreds upon hundreds of briefs written by Judge Roberts, or in which he participated, when he practiced as a lawyer both in the private sector and in the Solicitor General's Office. The committee and the Congress already has before it 10 articles authored by Judge Roberts, scholarly legal articles which reflect some of his thought processes and his expertise on various issues of law.

All of this, of course, was more than enough for the Senate to unanimously confirm Judge Roberts as it did 2 short years ago to the U.S. Court of Appeals for the District of Columbia, which many of my colleagues on the other side of the aisle have called the second most important court in the land.

There is more. Since his confirmation to the bench, he has participated in more than 300 appellate cases and opinions that cover more than 2,000 pages. The White House, as recently as yesterday or perhaps the day before, has pledged to expedite the public processing of more than 75,000 pages of memoranda that Judge Roberts wrote while an adviser to President Reagan during the 1980s. By any measure, this is a vast public record.

I am quite confident none of my colleagues on the other side of the aisle or even on our side of the aisle have had an opportunity to digest this huge disgorging of public information at this point. Yet there is the clamor already for more, more, more and complaints that the President and this administration have not given them enough. Perhaps my colleagues, I respectfully suggest, should read what has already been produced before they start complaining that it is not enough unless, of course, this is more about picking a fight than it is about finding a reasonable path toward an orderly process leading to an up-or-down vote on the Senate floor.

The documents my colleagues are demanding to see, the documents that remain that have not been provided, are documents written while he was a Government lawyer working in the Office of Solicitor General at the Department of Justice. As my colleagues know, the Solicitor General is the public official who argues cases on behalf of the U.S. Government in the U.S. Supreme Court. Of course, there are a number of lawyers who work there assisting the Solicitor General. Those lawyers write memoranda suggesting various litigation strategies--weighing, on the one hand, we could make this argument; perhaps it would be better to make this argument--and make a recommendation on the litigation strategy of the U.S. Government in the U.S. Supreme Court.

In 2002, all seven former living Solicitors General of both political parties wrote a letter

asking the President to refuse to turn over these confidential documents because they said such a move would chill for years to come the candid advice the Government receives from its lawyers. They noted that ``our decisionmaking process requires the unbridled, open exchange of ideas--an exchange that simply cannot take place if attorneys have reason to fear their private recommendations are not private at all, but vulnerable to public disclosure.''

Most Americans understand that it makes sense to allow this sort of private communication between a lawyer and a client in order to provide the most effective legal representation, and the same principle applies, of course, whether you are the Solicitor General representing the U.S. Government or whether you are a lawyer representing someone who has been accused of a crime or someone who is pursuing a civil claim in a court of law.

A couple of our distinguished Senators from Vermont and Massachusetts have in recent days argued that confidential memoranda written by Government lawyers are the property of the American people and, therefore, should be handed over to the Senate. Of course, that is in direct contradiction to what the seven bipartisan appointees of the Office of Solicitor General have said as recently as 2002.

But we all understand that the nature of the attorney-client relationship is not one that should be breached simply because the government is a party to the communication. For example, the Federal Government's veterans hospitals are there to take care of the men and women who fought for our freedom. Does this mean that Members of this Senate are entitled to see confidential medical files of veterans who receive care in these facilities? Does that mean somehow we should be able to invade the doctor-patient relationship by making public their private medical records? Certainly not. The same principle holds true, this principle of confidential communications in a position of trust or fiduciary relationship, between lawyers and clients as well. To hold otherwise would deny the American people the vigorous and outstanding representation they are entitled to before the U.S. Supreme Court.

I suggest, in accordance with traditional practice, that the claim of attorney-client privilege for these Solicitor General documents, these deliberate documents written by Judge Roberts when he was working in that office representing the U.S. Government, can and should remain confidential. They should not be made public. And we should stop playing this game of ``gotcha'' by moving goalposts on the President's nominees.

I yield the floor.

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