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Many memos called ‘out of bounds’

Jennifer Loven Associated Press

WASHINGTON – The White House warned Democrats on Monday not to make extensive requests for Supreme Court nominee John Roberts’ legal writings in previous Republican administrations, saying many such documents are “out of bounds.”

Separately, the Supreme Court nominee waved off questions about whether he was a member of a conservative legal organization. Roberts, on his fourth day of paying courtesy calls on senators, hasn’t answered questions since President Bush announced his nomination – as is typical for nominees – and Sen. Dianne Feinstein, D-Calif., said the membership matter probably won’t affect his confirmation.

With Bush’s first chance to shape the Supreme Court, the White House is hoping to avoid the kind of showdown with Democrats over document requests that has stymied Senate confirmation of some of the president’s other high-profile nominees.

Asked repeatedly to say whether the administration is open to making Roberts’ writings as a former administration lawyer available, White House press secretary Scott McClellan avoided saying “no” outright.

“We want to work with the members of the Senate to make sure that they have the appropriate information so that they can do their job,” McClellan said.

The issue could be critical as the Senate prepares to decide whether to confirm Roberts as Bush’s replacement for retiring Justice Sandra Day O’Connor.

Democrats have offered no indication that they plan an all-out battle against Roberts. But since his two-year tenure on the federal bench has left him with a limited public record, they have hinted they may seek memos, briefs and other documents he wrote while working for two Republican presidents to shed more light on his stands on key issues such as abortion, the environment and federal jurisdiction.

Under President Reagan, Roberts was a lawyer in the White House counsel’s office. Under the first President Bush, Roberts was principal deputy solicitor general, a key position in the office that argues cases before the Supreme Court on behalf of the administration.

Some records are publicly available at the Reagan and Bush presidential libraries. Others still need clearance from representatives of the current president and former administrations, as required by law, as well as by archivists.

The Senate Judiciary Committee has yet to make any request. Sen. John Kerry, D-Mass., not a member of the committee, was the first to urge the White House to release Roberts’ written record “in its entirety.”

McClellan suggested that many – if not all – such documents will be withheld, saying that past administrations also have concluded they are shielded by attorney-client privilege and privacy.

“We hope people won’t make such requests that they know are considered out of bounds and that can’t be fulfilled because of those privacy issues,” he said.

Sen. Joseph Lieberman, D-Conn., one of the centrists who helped stop an earlier Senate fight over Bush’s judicial nominees, urged the White House to be flexible.

“I’d hate to see us get into a battle over whether the administration is going to share documents instead of the basic question: ‘Is Judge Roberts deserving of confirmation to be a justice of the United States Supreme Court?’ ” Lieberman said.

Meanwhile, the White House was unable to say definitively on Monday whether Roberts was a member of the Federalist Society, an influential legal group formed to counter what its members saw as growing liberalism on the bench.

A 1997-98 leadership directory for the Federalist Society lists Roberts as a steering committee member in the group’s Washington chapter, the Washington Post reported. At the time, Roberts was a partner in a private law firm.

Roberts has acknowledged participating in Federalist Society events, but McClellan said, “He has no memory of ever joining or paying dues to the Federalist Society.”

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