Democratic Senators Request Information On 16 Cases
Handled By Supreme Court Nominee

…Judiciary Panel Members Seek Documents on 16 Cases Out of Hundreds From John Roberts’ Time in Solicitor General’s Office

WASHINGTON (Friday , July 29) – The Democratic members of the Senate Judiciary Committee Friday sent a letter to Attorney General Alberto Gonzales requesting information on 16 cases Supreme Court nominee John Roberts handled as a Deputy Solicitor General under President George H.W. Bush.  Earlier this week, Senate Democratic Judiciary members sent a letter to President Bush containing a priority list of documents from the Reagan library as a way to expedite the White House's search, ease the review process and ensure fair and timely hearings.  

The letter is below, followed by background material on the 16 cases.  (PDF version of letter available on request.)     

 

 

July 29, 2005

The Honorable Alberto Gonzales
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Dear Attorney General Gonzales:

As part of the Judiciary Committee’s preparation for the hearings on the nomination of Judge John G. Roberts, Jr. to the Supreme Court of the United States, we write to request that the Department of Justice provide to the Committee certain materials in its possession.  Attached is a list of the documents that we are requesting, which should assist us in considering his nomination.  As you know, the Department of Justice has provided similar documents in the consideration of past nominees including Robert Bork to be a Supreme Court Justice, Benjamin Civiletti to be Attorney General, Stephen Trott to be a Ninth Circuit judge, and others.

We would appreciate your prompt attention to this request so that the Committee may have adequate time to review the requested documents in preparation for Judge Roberts’ hearing.  Thank you for your cooperation with this request.

Sincerely,

 

Request for Documents Regarding the Nomination of John G. Roberts Jr.
To the Supreme Court of the United States

Please provide to the Committee in accordance with the attached guidelines the following documents in the possession, custody, or control of the United States Department of Justice or any agency, component, or document depository thereof:

All documents of the following types:

a)      appeal recommendations,

b)      certiorari recommendations,

c)      amicus recommendations,

d)      memoranda concerning voluntary participation on cases or calls for the view of the Solicitor General, on which John G. Roberts, Jr. worked, in connection with the following cases: 

1)      Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991);

2)      Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993);

3)      Franklin v. Gwinnett County School District, 503 U.S. 60 (1992);

4)      Freeman v. Pitts, 503 U.S. 467 (1992);

5)      Herrera v. Collins, 506 U.S. 390 (1993);

6)      Lee v. Weisman, 505 U.S. 577 (1992);

7)      Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)

8)      Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992);

9)      Lujan v. National Wildlife Federation, 497 U.S. 871 (1990);

10)  Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S. 547 (1990);

11)  Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992);

12)  Rust v. Sullivan, 500 U.S. 173 (1991);

13)  Saudi Arabia v. Nelson, 507 U.S. 349 (1993);

14)  Suter v. Artist M, 503 U.S. 347 (1992);

15)  Voinovich v. Quilter, 507 U.S. 146 (1993); and

16)  Withrow v. Williams; 507 U.S. 680 (1993).

Guidelines

1)      This request is continuing in character, and if additional responsive documents come to your attention following your initial production, please provide such documents to the Committee promptly.

2)      As used herein, “document” means the original (or an additional copy when an original is not available) and each distribution copy whether inscribed by hand or by electronic or other means.  This request seeks production of all documents described, including all drafts and distribution copies, and contemplates production of responsive documents in their entirety, without abbreviation or expurgation.

3)      In the event that any requested document has been destroyed, discarded, or otherwise disposed of, please identify the document as completely as possible, including the date, author(s), addressee(s), recipient(s), title, and subject matter, and the reason for disposal of the document and the identity of all persons who authorized disposal of the document.

4)      If a claim is made that any requested document will not be produced by reason of a privilege of any kind, describe each such document by date, author(s), addressee(s), recipient(s), title, and subject matter, and set forth the nature of the claimed privilege with respect to each document.

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(Background on Roberts’ Document Request)

 Request for John Roberts’ Department of Justice Documents

During John Roberts’ term as Deputy Solicitor General, the Solicitor General’s Office was involved hundreds of landmark cases affecting the rights of all Americans.  Democratic members of the Senate Judiciary Committee have requested information on Judge Roberts’ involvement in just 16 of the hundreds of cases the Solicitor General’s office litigated while Judge Roberts served in a policy-making role in the office.  Each of these cases raises important issues about civil rights, and fundamental Constitutional principles.  Americans deserve to know more about his views on these issues before the Senate decides whether to confirm him to the nation’s most powerful court.

 A Handful of Cases Out of Hundreds

·   16 of 81 - Less Than One-Fifth of Roberts’ Cases: Roberts signed the briefs in approximately 81 cases, 78 of which were argued before the Supreme Court.  The Democratic request represents well under one-fifth of those cases in which he publicly participated.

·   16 of 300 - A Handful of Hundreds of Supreme Court Cases:  The Solicitor General’s office was involved in roughly 300 cases appealed to the Supreme Court. That would mean an average of 75 of those cases a year came through the Solicitor General’s Office’s, during the four years Mr. Roberts was there. Democratic members have asked for documents on only a handful of the cases in which he was not publicly named (Lucas v. SCCC; Lujan v. Defenders; Planned Parenthood v. Casey).

·  Solicitor General Office Reviews Thousands of Cases:  The Solicitor General’s office opposes Supreme Court certiorari in more than 1,000 cases per year and makes decisions relevant to many hundreds of federal appeals each year.  Of these more than 1,000 cases each year, a significant proportion crosses the desk of the Principal Deputy Solicitor General.  The Democratic Committee request does not include any of these cases.

 Catalog of Cases

Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991), was an important school desegregation case in which John Roberts filed an amicus brief opposing efforts of African American families to pursue claims that their local schools would become re-segregated. 

In Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993),  John Roberts filed an amicus brief and participated in oral argument  requesting that the Court hold that the obstruction of family planning clinics by anti-abortion activists did not harm women because of their gender in violation of federal law. 

Franklin v. Gwinnett County School District, 503 U.S. 60 (1992), was a landmark case rejecting John Roberts’ arguments to limit relief under Title IX for students who suffer even the most severe gender harassment.  If accepted, his arguments would also have undermined other important civil rights prohibiting discrimination with federally funded programs, including Title VI of the 1964 Civil Rights Act (prohibiting race and ethnic discrimination), Section 504 of the Rehabilitation Act (prohibiting disability discrimination), and the Age Discrimination Act of 1975) all which contain language nearly identical to that in Title IX.

In Freeman v. Pitts, 503 U.S. 467 (1992), John Roberts filed a brief urging the Supreme Court to reverse a Court of Appeals ruling that required a Georgia school district to make further efforts to fully de-segregate its public schools.

In Herrera v. Collins, 506 U.S. 390 (1993), the Solicitor General’s office filed a brief arguing that a Texas man could not seek relief in federal court based on his claim that new evidence showed he was actually innocent of the crime for which he had been sentenced to death.

Lee v. Weisman, 505 U.S. 577 (1992) involved the question of whether a prayer by clergy selected by the public school at a graduation ceremony violates the principle that the government should not favor a particular religion.

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Solicitor General’s office Office file a brief arguing that the state had taken petitioner’s property within the meaning of the Fifth Amendment when it passed building regulations which had the result of forbidding petitioner from building a permanent structure on his property, and that the state therefore must compensate him.  John Roberts was not on the briefs.

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), is an important environmental case in which the Solicitor General argued to deny a citizen standing to challenge environmental harm.  John Roberts was not on the briefs.

In Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), John Roberts argued as acting Solicitor General urging the Court to narrow citizens’ ability to challenge unlawful land use decisions as harmful to the environment.  John Roberts was on the brief and participated in oral argument.

In Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S. 547 (1990),  as acting Solicitor General, John Roberts filed a brief contrary to the position taken by the FCC, in which he unsuccessfully attacked the FCC’s affirmative action program with regard applications for new broadcast licenses. 

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), is a landmark case holding that the constitutional right to privacy regarding reproductive decisions prevents the state from requiring women to notify their husbands before deciding to have an abortion.  The Solicitor General’s office filed a brief in the case that urged the Court to overturn Roe v. Wade.  John Roberts was not on the brief.

Rust v. Sullivan, 500 U.S. 173 (1991), upheld the validity of an abortion “gag rule” regulation under the First Amendment, and did not directly involve Roe v. Wade.  The Solicitor General’s brief in the case, which Roberts co-authored, not only argued to uphold the regulations, but also urged the Court to reverse Roe. 

Saudi Arabia v. Nelson, 507 U.S. 349 (1993).  SG filed an amicus brief arguing that the Saudi Arabia should be immune from suit by an American who claimed he was recruited to work for the kingdom and then imprisoned and tortured.  Roberts was on the brief.

Suter v. Artist M, 503 U.S. 347 (1992).  In a very important case concerning when a citizen’s right to sue can be implied from a statute, the  SG’s office filed an amicus urging the Court to interpret an Adoption Assistance statute narrowly so as to preclude abused children from suing the states for failing to take reasonable actions to ensure that foster children are reunified with their natural families where possible.  John Roberts was on the brief and participated in oral argument.

Voinovich v. Quilter, 507 U.S. 146 (1993), a key Voting Rights Act case in which the Solicitor General filed a brief opposing claims by minority voters in Ohio.  John Roberts co-authored the Solicitor General’s brief.

Withrow v. Williams, 507 U.S. 680 (1993), was a key case in which the Solicitor General’s office urged the Court to severely curtail Miranda rights by ruling that federal courts may not entertain Miranda claims in habeas corpus petitions filed by state prisoners.  John Roberts was on the brief and participated in oral argument.

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Past Nominees Have Been Forthcoming With Their Records

There is ample precedent of the Senate Judiciary Committee requesting and receiving sensitive documents and materials relating to nominees’ previous work.  The Committee has requested and been provided with information of nominees for the Supreme Court and other posts:

Documents, Including SG Documents, Produced for Bork Nomination

·         During the consideration of the nomination of Judge Robert H. Bork to the Supreme Court, in response to an extensive and detailed document request from the Judiciary Committee, the Department of Justice turned over a variety of types of documents in at least three separate transmissions. 

·         Over a period of more than three weeks, the Department conducted extensive searches in its archives and the archives of former President Nixon in order to produce documents directly responsive to the Committee’s requests. 

·         Assistant Attorney John Bolton detailed the efforts and their results in correspondence with the Committee.  He also produced an extensive privilege log to explain to the Committee which documents would be withheld and why.

·         Among the documents produced by the Justice Department to the Judiciary Committee were internal memoranda and non-public material related to Bork’s work in the Solicitor General’s office.  While much of the material was returned to the Department after the nomination was defeated, some of the documents remain in Senate archives and even in the Bork hearing transcript.

Internal Justice Department Materials Produced for Rehnquist Nomination

·          During the consideration of Justice William H. Rehnquist’s nomination to become Chief Justice, the Committee was provided with numbers of internal memoranda, including a memo written by Rehnquist as a clerk to Supreme Court Justice Robert Jackson.

·         Assistant Attorney General John Bolton wrote to the Committee and detailed the efforts expended by the Department to locate responsive documents, and discussed the process by which it was determined which documents were appropriate to send to the Senate. 

Internal Justice Department Documents Produced for Civiletti Nomination

• Internal DOJ documents regarding settlement of an anti-trust suit were provided to the Committee in connection with the successful nomination of Benjamin Civiletti to be Attorney General. 

Sensitive Department of Justice Memos Produced for Trott Nomination

• Internal memos relating to the deliberation of DOJ, Attorney General Ed Meese’s decision not to appoint a special prosecutor to investigate whether U.S. Ambassador Faith Ryan Whittlesey misused embassy funds to assist Republican campaign donors were provided to the Senate in the successful nomination of Stephen Trott to the Ninth Circuit.

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