Democratic Senators Seek Key Information
From Judge Alito's Work In Justice Department
WASHINGTON (Tuesday, Dec. 20)
-- The Democratic members of the Senate Judiciary Committee
sent the following letter to Attorney General Alberto
Gonzales Tuesday seeking key documents relating to the
nomination of Samuel Alito to be Associate Justice of the
Supreme Court. In their letter, Senators have requested
information omitted from the Committee’s questionnaire,
including work material from Judge Alito’s time in the
Justice Department during the Reagan Administration. Judge
Alito worked in the Solicitor General’s office from 1981 to
1985,
and then in the Office of Legal Counsel from 1986 to 1987.
In their letter, Senators noted that some documents
relating to Alito’s work in the Solicitor General’s office
have already been released to the public. The Senators are
also seeking approximately 45 opinions Judge Alito worked on
during his time in the Department’s Office of Legal Counsel.
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December 20, 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 Samuel A. Alito, Jr., to the Supreme Court of the
United States, we write to request that the
Department of Justice provide to the Committee materials in
its possession relating to his service in the Department.
Most or all of these materials were called for by the
Senate Judiciary Committee Questionnaire, and all will be
important in evaluating Judge Alito’s nomination. As you
know, the Department of Justice has provided similar
documents in the consideration of past nominees.
We write specifically to
request: (1) internal memoranda that Judge Alito produced
within the Office of the Solicitor General (OSG) relating to
cases before the Supreme Court; and (2) the approximately 45
opinions we have not yet received, as well as any internal
memoranda, which Judge Alito wrote or supervised at the
Office of Legal Counsel (OLC).
As to the OSG memoranda, the
Department of Justice has on many occasions in the past
provided the Senate with internal documents in response to
similar requests. In a break from this pattern of
cooperation, this administration has in a few instances
flatly refused requests for OSG documents based on the idea
that the release of internal OSG documents would hamper the
free flow of ideas among attorneys within the office. That
argument carries little weight in this instance, however, as
three memoranda that Judge Alito prepared within the OSG
have already been released, only because they happen to have
made their way to the National Archives. In addition to the
legal point that the release of these documents represents a
waiver of any privilege that could apply to Judge Alito’s
OSG memoranda, the release of these documents makes several
points very clear to us.
First, the internal memoranda
Judge Alito produced at the OSG appear to have been
substantive and extremely relevant to the Senate’s
consideration of his nomination. The memoranda we have
received thus far illuminate Judge Alito’s personal legal
views of important constitutional issues, as well as his
approach to precedent and other key judicial concepts. The
OSG memoranda we have already seen make it clear that we and
the American people could learn much about Judge Alito’s
judicial philosophy and legal thinking from his remaining
OSG memoranda.
In addition, the public
disclosure of memoranda revealing Judge Alito’s role in the
inner workings of the OSG does not appear to have impacted
the present operation of that office or hampered the free
flow of ideas within the Department of Justice. Just as the
Department continued to function effectively after the
release of internal OSG memoranda and other internal
Department of Justice materials in connection with numerous
past nominations, so the Department moves forward unscathed
now. Many of these “confidential” documents, as we have
seen, make their way into the files of various government
officials and to the public through Freedom of Information
Act requests over time anyway, with no apparent ill effect.
There is no reason to think that the release of additional
memoranda produced by Judge Alito will impact the current
workings of the Department, when the memoranda released thus
far have not.
As we have set out in detail
in the past, the attorney-client privilege does not apply to
requests from the Senate in furtherance of its explicit
constitutional responsibility. Senator Hatch has said:
AThe
attorney-client privilege exists as only a narrow exception
to broad rules of disclosure. And the privilege exists only
as a statutory creation, or by operation of State common
law. No statute or Senate or House rule applies the
attorney-client privilege to Congress. In fact, both the
Senate and the House have explicitly refused to formally
include the privilege in their rules.@
[Congressional Record, Dec. 20, 1995.] Nor do we believe
that the President holds the attorney-client privilege in
relation to work that Judge Alito performed for the American
people at the OSG. We need not fully rehash our previous
discussion of the attorney-client privilege in detail here,
however, because the disclosure of several of Judge Alito’s
OSG memoranda renders the issue of attorney-client privilege
moot.
We also note that the
requested documents are responsive to question 14(b) of the
Judiciary Committee’s questionnaire, which asked Judge Alito
to provide, “in connection with any public office [he has]
held, … any reports, memoranda, or policy statements
prepared or produced with [his] participation.” These
documents also may be responsive to question 15(f),
which asked him to describe his practice before the Supreme
Court of the United States. In spite of these questions on
point, we have learned about several cases in which Judge
Alito participated substantially at the OSG but which do not
appear in his questionnaire responses, so we cannot be sure
which key cases he wrote about in that office. We
accordingly are unable to restrict the list of cases for
which we are requesting documents.
As to the OLC memoranda, Judge
Alito indicated in his 1990 questionnaire for his nomination
to the Third Circuit that he “wrote or supervised the
preparation of approximately 50 such
memoranda” while Deputy Assistant Attorney General at OLC.
Four of these memoranda are publicly available, and the
Department of Justice has recently provided a fifth; we now
request the remaining opinions and any internal legal
memoranda. Some OLC opinions in which he participated may
be public already, but not readily identifiable as his work;
in those instances, we simply ask that you identify the
relevant opinions.
As with the OSG memoranda, the
memoranda that Judge Alito wrote or supervised at OLC
discussing important legal issues facing the government are
responsive to question 14(b) of the questionnaire and are
relevant to evaluating his legal thinking. And once again,
several memoranda have already been made public without any
apparent harm to the office. Indeed, OLC memoranda are
generally prepared as advice for other components of
government and therefore are routinely distributed outside
of the office. Moreover, OLC opinions and memoranda from
the 1980’s have little relevance to the current operation of
government, and some have been superseded. Sharing these
memoranda with the Senate now will help us to perform our
vital constitutional duty and to evaluate Judge Alito’s
legal thinking without compromising Department or other
government interests.
To the extent that you do have
concerns about protecting the confidentiality of other
attorneys in the OSG or the OLC, we would welcome working
with you to find ways to address these and any other
confidentiality concerns that may arise as to particular
documents. For several past Supreme Court nominations,
there were discussions back and forth between Senators and
the Department of Justice about the production of documents,
leading ultimately to mutually satisfactory solutions. We
look forward to such a process now and would welcome
speaking with you in person to discuss these issues further.
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 Alito’s hearing. Thank you for your
cooperation with this request.
Sincerely,
PATRICK LEAHY
EDWARD KENNEDY
JOSEPH BIDEN
HERB KOHL
DIANNE FEINSTEIN
RUSS FEINGOLD
CHARLES SCHUMER
RICHARD DURBIN
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