The secrecy precedent

September 13, 2005

THIS MUCH is known for sure about chief justice nominee John G. Roberts Jr.: He has enough discipline to sit silently for hours before pontificating senators, his face a mask of solemnity but for an occasional nod or slight smile.

Revelations beyond that during the three days of confirmation hearings that began yesterday will depend on the outcome of what Judiciary Committee Chairman Arlen Specter called a "subtle minuet" between those seeking to learn as much as possible about the nominee's views and Judge Roberts' protective strategy of saying as little as he can get away with. During his brief opening remarks, the nominee for the top spot on the supreme court likened the judicial role to that of umpire, and promised if confirmed he would remember "my job is to call balls and strikes, not pitch or bat."

The Bush administration unnecessarily escalated tensions by refusing to release documents related to Judge Roberts' four years as principal deputy solicitor general, serving the current president's father.

"We can only wonder what they don't want us to know," observed Sen. Edward M. Kennedy, a Massachusetts Democrat.

The disputed files, reflecting Judge Roberts' work on 16 cases, may not shed a great deal more light on his personal legal philosophies, much less provide a smoking gun to thwart a confirmation seemingly on track. That's not the point.

What's most important here is the precedent: The government should not be allowed to withhold documents related to judicial nominees, especially for the high court.

The administration's claim that making public such papers would have a "chilling effect" on a lawyer's ability to give candid advice is the same old chestnut it frequently trots out to justify what has been the greatest expansion of government secrecy ever.

As a government lawyer, Judge Roberts represented the people of the United States. They have a right to evaluate that advice before he is promoted to lead the American judiciary for perhaps decades to come.

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