- The Washington Times - Monday, July 1, 2002

Former solicitors general on both sides of the aisle are urging the Democrat-controlled Senate Judiciary Committee to back off its request for confidential internal memos regarding one of President Bush's judicial nominees.
The committee asked for the documents as part of the confirmation process of D.C. Court of Appeals nominee Miguel Estrada, who was nominated 412 days ago.
In a letter to Sen. Patrick J. Leahy, committee chairman and Vermont Democrat, the solicitors said they were "concerned" about the requests to turn over appeal recommendations, certiorari recommendations and amicus recommendations on which Mr. Estrada worked while employed by the Office of the Solicitor General.
"As former heads of the Office of the Solicitor General under presidents of both parties we can attest to the vital importance of candor and confidentiality in the solicitor general's decisionmaking process," said the letter obtained by The Washington Times.
The letter is signed by all seven living solicitors: Clinton appointees Seth P. Waxman, Walter Dellinger and Drew S. Days III; Bush appointee Kenneth W. Starr; Reagan appointee Charles Fried; Nixon appointee Robert H. Bork; and Kennedy appointee Archibald Cox, 94, a former Watergate special prosecutor.
"Any attempt to intrude into the office's highly privileged deliberations would come at the cost of the Solicitor General's ability to defend vigorously the United States' litigation interests, a cost that also would be borne by Congress itself," the letter said.
The request for documents has been rejected by the Justice Department, which said Mr. Estrada's writings are protected by executive privilege, are confidential and attorney-work product.
A spokesman for Mr. Leahy said there is "ample precedence" for this kind of request and that previous administrations have acted in good faith and released the documents.
"The strongest advocates for this nomination make much of his experience in the Justice Department, and it is puzzling why such strenuous efforts are being made to shield his record at the Justice Department from public view," said spokesman David Carle.
"This administration treats the issue like a political hockey puck," Mr. Carle said.
Sen. Orrin G. Hatch, Utah Republican and ranking member, called the committee's request for documents "troubling."
"It is for protected memoranda and is another example of the Democratic majority and the special interest groups attempting to change the rules on judicial nominations and treating highly qualified and worthy nominees unfairly," said Mr. Hatch, Utah Republican.
"I cannot believe that the request was even made. I believe the request was not only ill-advised, but also flouts legal ethics and the constitutional separation of powers," Mr. Hatch said.
Mr. Estrada was nominated May 9, 2001, but no confirmation hearings have been held. However, Mr. Carle has said the committee is committed to holding a hearing before the end of the year.
"Although we profoundly respect the Senate's duty to evaluate Mr. Estrada's fitness for the federal judiciary, we do not think that the confidentially and integrity of internal deliberations should be sacrificed in the process," the letter said.
Republicans have charged that Democrats do not want to confirm Mr. Estrada because they fear that Mr. Bush eventually would nominate him to the Supreme Court, making him the most visible example of Republicans' efforts to court Hispanics.


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