This letter argues that it’s important for Solicitors General to have access to confidential advice from their subordinates. This op-ed, written by Walter Dellinger, who signed the letter, explains how the Roberts case is different.
Unlike Estrada, Roberts was writing memos not as a civil service lawyer but as a senior political appointee in a policymaking position, and the judgeship at stake isn’t any federal judgeship but the Supreme Court itself. These factors and the announced release of volumes of earlier memos to the White House counsel -- undistinguishable as a matter of law from memos to the solicitor general -- suggest that the memos to the latter will be made public as well.
I’m not sure why the first factor should make a difference when it comes to the importance of getting candid advice. As I understand it, executive privilege (analogous, if not identical) covers political appointees, as well as others. Indeed, the third factor suggests as much. If "political advice" is "undistinguishable as a matter of law from memos to the solicitor general," then the considerations that argue for privilege in one apply as well to the other.
This leads me to two conclusions, one about the Democrats (represented here by Dellinger) and the other about the Bush Administration. First, Dellinger’s second factor--that this is a Supreme Court nomination--makes all the difference, at least in his mind and in the minds of his allies. All bets are off. All other considerations are subordinate to this one. Second, people in the Bush Administration should of course know this, and recognize that by releasing any documents, they just whet the appetite for more. In the minds of Bush’s opponents, there is no principled distinction between one sort of document and another, one sort of position and another. Everything is an object of interest and inquiry.
We want to know, as Dellinger puts it, "what kind of person the nominee is," which means we need to know almost everything about the substantive positions he takes. However nuanced and carefully balanced--I’ll even use the word "judicious"--Dellinger’s use of this information might be (see the concluding paragraph of the op-ed), he’s got to be enough of a grown-up to know that the politicians and activists on the Democratic Left are just looking for ammunition. They’ll talk about "judicial temperament," but what they really care about is substantive positions. If all you cared about is judicial temperament, you could discern that by conducting a traditional (that is, pre-Bork) confirmation hearing.
Update: Paul Mirengoff has more.