Justice Roberts and Executive Privilege
So, I realized I gave a bit of a hand wave over the argument that Roberts would rule in favor of the Bush administration. I thought I would take a minute to rectify that (but only a minute; its late and I’ve already been late to work this week).
Back when Roberts was preparing for his Senate confirmation, his work at the Reagan White House came under a good deal of scrutiny. One of his internal memo, addressed to the then and now WH Counsel Fred Fielding, gives me the impression that Roberts would be more than willing to support arguments favoring a unitary executive. OMBWatch originally posted the memo here. Roberts is arguing to Fielding the danger posed by the recently passed Presidential Records Act, an act which whose requirements he think will eventually be found illegal (interestingly, no case could be pushed on such a matter until 2001- fortuitoius timing). Roberts writes:
<blockquote>At that point [2001] any executive privilege claim would hinge to a large extent on the views of the incumbent President, who may or may not be in a position to place the long-term interests of the institution above short-term political interests.</blockquote>
A smoking gun? No where close. Roberts is, after all, arguing on behalf of the White House; he may very well turn from those views. But this document reflects a White House that made strident efforts to increase the power of the President through legal means, and Roberts played a large part in those efforts. (Check out the 1984 battle over EPA Administrator Gorduch for more evidence). Besides, Fielding is the man who brought Roberts into politics. Why would he be acting without a good knowledge of what his protege would do?
