The Volokh Conspiracy - "Estradification":

In the spirit of confirmation battles spawning a new lexicon (e.g., "Borking") the Washington Times reports today on what some Republicans are calling "Estradification"--requiring the Justice Department to turn over internal legal memoranda written by Roberts while he worked in the SG's office. The refusal by the White House to surrender these sorts of documents was the basis for the Estrada filibuster (hence the name) as well as the current Bolton stalemate.

Regardless of the merits of the request, it seems highly unlikely that the White House will surrender these documents. The tone of the article suggests that even though the request held up a vote on Estrada (which was much lower profile), few seem to believe that the refusal to turn over these documents would support a filibuster on a Supreme Court nominee. ~~I haven't followed the exact nature of the Bolton request closely enough to say whether what is being requested there is similar to what may be requested here and in the Estrada situation.~~ So far, it looks like this has not come to a head, so it could turn out to be a non-battle.

Personally, the request for internal Executive Branch documents for judicial confirmations always seemed like a bit of stretch to me. It also seems like it would be a stretch to me to request draft opinions and other non-public deliberation papers from Roberts's time as a Circuit Judge, as opposed to published opinions. The major problem in both situations, of course, is the institutional harm that such requests would have on the internal deliberations of the Executive or the Judiciary if people knew they could come out later.

I looked around a little bit, but I haven't found any legal commentators who think that requesting these sorts of documents is appropriate. During the Estrada filibuster seven former SG's of both parties spoke out against these requests and the use of the filibuster in relation to it. If someone has identified a persuasive argument as to the propriety of requesting these internal memoranda, please note it in the Comments. Overall, my impression is that this is one of those places where there is fairly uniform agreement that it seems like a bad idea to go there. But it may be that someone out there is making the argument and I just haven't come across it.

So my sense is that this issue likely won't reach escape velocity in terms of leading to a filibuster, but it may be one stealth technique that is on the table to try to combat what so far seems to be pretty successful stealth nominee, especially because it did seem to work on Estrada and so far seems to be successful on Bolton. If the request is not made, however, then that seems to create problems of its own, as then it seems to raise the question of why the failure to turn over those documents was definitive in the Estrada ~~(and perhaps Bolton)~~ situation, but is not requred for Roberts. So the question is whether the refusal to surrender the documents in this case would be prejudicial to the Democrat's request to surrender those documents in the other cases and their willingness to filibuster nominations where the documents are not produced. But perhaps there's a difference between what is being requested in the various cases that supports a filibuster in one instance but not the other.

Update:

Several people in the Comments have clarified that the Bolton situation (which, as I noted, I haven't followed the details that closely, but was mentioned in the Washington Times article) can be distinguished from Estrada (and presumably Roberts). So I have stricken the Bolton references in the post.

	[Todd Zywicki, July 22, 2005 at 2:04pm] Trackbacks "Estradification": In the spirit of confirmation battles spawning a new lexicon (e.g., "Borking") the Washington Times reports today on what some Republicans are calling "Estradification"--requiring the Justice Department to turn over internal legal memoranda written by Roberts while he worked in the SG's office. The refusal by the White House to surrender these sorts of documents was the basis for the Estrada filibuster (hence the name) as well as the current Bolton stalemate. Regardless of the merits of the request, it seems highly unlikely that the White House will surrender these documents. The tone of the article suggests that even though the request held up a vote on Estrada (which was much lower profile), few seem to believe that the refusal to turn over these documents would support a filibuster on a Supreme Court nominee. ~~I haven't followed the exact nature of the Bolton request closely enough to say whether what is being requested there is similar to what may be requested here and in the Estrada situation.~~ So far, it looks like this has not come to a head, so it could turn out to be a non-battle. Personally, the request for internal Executive Branch documents for judicial confirmations always seemed like a bit of stretch to me. It also seems like it would be a stretch to me to request draft opinions and other non-public deliberation papers from Roberts's time as a Circuit Judge, as opposed to published opinions. The major problem in both situations, of course, is the institutional harm that such requests would have on the internal deliberations of the Executive or the Judiciary if people knew they could come out later. I looked around a little bit, but I haven't found any legal commentators who think that requesting these sorts of documents is appropriate. During the Estrada filibuster seven former SG's of both parties spoke out against these requests and the use of the filibuster in relation to it. If someone has identified a persuasive argument as to the propriety of requesting these internal memoranda, please note it in the Comments. Overall, my impression is that this is one of those places where there is fairly uniform agreement that it seems like a bad idea to go there. But it may be that someone out there is making the argument and I just haven't come across it. So my sense is that this issue likely won't reach escape velocity in terms of leading to a filibuster, but it may be one stealth technique that is on the table to try to combat what so far seems to be pretty successful stealth nominee, especially because it did seem to work on Estrada and so far seems to be successful on Bolton. If the request is not made, however, then that seems to create problems of its own, as then it seems to raise the question of why the failure to turn over those documents was definitive in the Estrada ~~(and perhaps Bolton)~~ situation, but is not requred for Roberts. So the question is whether the refusal to surrender the documents in this case would be prejudicial to the Democrat's request to surrender those documents in the other cases and their willingness to filibuster nominations where the documents are not produced. But perhaps there's a difference between what is being requested in the various cases that supports a filibuster in one instance but not the other. Update: Several people in the Comments have clarified that the Bolton situation (which, as I noted, I haven't followed the details that closely, but was mentioned in the Washington Times article) can be distinguished from Estrada (and presumably Roberts). So I have stricken the Bolton references in the post.