Should the White House Allow Democrats Access to Judge Roberts' Files?

This is a partial transcript from "Hannity & Colmes," July 22, 2005, that has been edited for clarity.

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ALAN COLMES, CO-HOST: The Senate confirmation hearing for Judge John Roberts is still more than a month away, but already a controversy is brewing on Capitol Hill. According to Roberts, Senate Democrats plan ask to the Bush administration for full access to files pertaining to Judge Roberts' work as a lawyer for the Justice Department and for the Reagan White House.

Now, it isn't clear whether or not access will be granted, but could this be the big sticking point between the two parties come Labor Day? Now, joining us now are two men who were members of the Judiciary Committee during the confirmation hearings of Clarence Thomas and Ruth Bader Ginsburg, former Arizona Democratic Senator Dennis DeConcini and former Colorado Republican Senator Hank Brown.

Welcome to you both.

Senator Brown, what is appropriate — is it appropriate, especially with a candidate like Judge Roberts, where there's not a lot of information — some have called him a stealth candidate — to try to get this information from the White House?

FMR. SEN. HANK BROWN (R), COLORADO: Well, almost anything's become fair in the way they look at this. But the reality is, the judicial nominees decline to indicate how they'll rule on an opinion, and the basis of that is that they don't want to prejudge a case.

So it's very difficult to get information on how someone's going to rule. What you do is look at qualifications. Judge Roberts clearly has probably the best qualifications of anyone ever nominated to the Supreme Court.

COLMES: But it is it OK to go to the White House and ask for memos having to do with things he's written in the past? Is that fair game?

BROWN: You know, I would — my immediate reaction to that is it would it not be, but for a whole different basis, not relation to the judge, but relation to the executive branch.

You're entitled to an attorney-client privilege. You're entitled to talk over issues with a lawyer. You're entitled to get advice on hypotheticals. It would really be very damaging to any executive, Democratic or Republican, to have those become publicly available. What it would do is simply curtail your ability to work with your attorneys.

So it probably doesn't make much sense, but it may be the only thing that opponents can do.

COLMES: But, Senator DeConcini, Roberts worked in the deputy solicitor general's office as a deputy solicitor general. That means he works for the government, which means he works for the taxpayer. We're not talking about private practice notes. Is it fair to find out what he did and what he said when he was working for the United States taxpayer?

FMR. SEN. DENNIS DECONCINI (D), ARIZONA: Yes, I think it is, certainly. I agree with my former colleague, distinguished Senator Brown, because I didn't think the executive branch is a place to go -- to the White House.

But I do think it's proper to go to where he worked, whether it was the Commerce Department, or the Justice Department, or something like that, because when he was in the Solicitor's office, there's been a number of nominees and confirmed Supreme Court justices who were even solicitors.

And their background, their opinions, their memos, their briefs were all researched. We did that when Bork was there. We did that on Breyer, when Breyer was up for confirmation. And you know, that's appropriate to look at it. But I agree with Senator Brown, Judge Roberts, is a very, very competent appearing — at least from what I see and read, and I've read several of his opinions today. I'm pleased that the president put somebody up that is not a lightning rod for the necessary scrutiny that anybody who's going to be on the Supreme Court, should be scrutinized, in my judgment.

LOWRY: Senator DeConcini, it's Rich. Let me ask you...

DECONCINI: Hi, Rich.

LOWRY: ... you just mentioned this is a superbly qualified nominee by all accounts. He has a judicious temperament.

DECONCINI: Yes, sir.

LOWRY: Even Senator Dick Durbin is finding it hard finding things to say that are nasty about him. So doesn't going after these documents, as some Democrats might, doesn't that have the smell of a bit of a fishing expedition?

DECONCINI: Well, yes, Rich, you can draw that conclusion. But you know, these are the most important — I think the most important appointments that a president makes, is to the Supreme Court, in my own judgment.

And I was there — I voted on eight of the present sitting justices. And I looked at everything. I know more about those judges, about what stock, what memos they wrote when they were in law school, when they were interns for judges.

I read and my staff read that stuff. I think that's appropriate. So I don't think it's fishing, although, based on the history, the immediate past history of what's gone on in the fights there, I can see how you might come to that conclusion.

LOWRY: But, Senator, we were through this once before in the nomination of Miguel Estrada to the appeals court, which was filibustered by Democrats because they were demanding documents he had written when he was working in the Solicitor General's office.

And you had seven former solicitor generals, Republican and Democrat, saying this is totally inappropriate and the executive branch needs to keep these things confidential. It seems to me it'd be pretty much a consensus among executive branch-types that these things have to be kept in confidence.

DECONCINI: Well, Rich, they're not senators. They're not sitting on the Judiciary Committee trying to be objective. Now, maybe they're totally partisan. You know, Democrats and Republicans do. That does happen all the time.

But, you know, their job is to satisfy themselves and to look at everything that is possible to make a determination. Now, if they turn that into political harpooning, then, of course, it's wrong.

LOWRY: Senator Brown, let me get you in really quickly. You were there for the Ginsburg nomination. That was a very bipartisan process. Do you have any hope that Democrats will behave themselves now like the Republicans did then?

COLMES: You've got 10 seconds, Senator. Very quickly.

BROWN: I think it's a different attitude. Ginsburg clearly was very liberal and received Republican support because she was well-qualified. One thing, let me just say, in terms of Senator Kennedy staffer, Justice Breyer — Justice Breyer served as his staffer on the Judiciary Committee. No one would have dreamed of asking for his confidential memos on his work on the Judiciary Committee.

COLMES: We've got to run, gentlemen. Thank you both very, very much.

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