Remember how the Swift Boat Veterans for Truth attack ads drew attention away from the issues that should have been at the center of last fall's presidential campaign? Well, a similar dynamic is occurring in the debate over President Bush's nomination of John Roberts to the Supreme Court.

NARAL Pro-Choice America, in a new TV commercial, asserts that Roberts "excuses violence against other Americans" and supports those who bomb abortion clinics. It has, as you might imagine, ignited a firestorm. Our reading of Roberts' arguments in the 1991 Supreme Court case at issue -- when he served as the top deputy in the solicitor general's office -- is that they were narrowly legal and not at all intended as a defense of those who bomb abortion clinics. He argued that an 1871 statute designed to protect people from the Ku Klux Klan did not give the federal courts the power to prevent anti-abortion protesters from blockading clinics. The Supreme Court ultimately agreed with him.

But as this firestorm burns, it unfortunately draws attention away from a more important issue: an outrageous effort by the White House to keep from the U.S. Senate documents written by Roberts that might shed light on how he thinks about a constitutional right to privacy, affirmative action and other important, general legal principles.

In 1978, fearful that former President Richard Nixon would never allow public access to his papers, Congress passed the Presidential Records Act. It says that a former president's papers belong to the American people and will be managed by the archivist of the United States, who shall make them available to the public. The law allows former presidents to prevent access to some records for up to 12 years. After that, almost all documents, except those bearing on national security, must be made public.

As he was about to leave office in January 1989, President Ronald Reagan issued an executive order establishing policies and procedures for administering the act. Reagan also claimed the entire 12 years for many of his papers. The 12 years expired in January 2001, but President Bush ordered the archivist to delay release of the first batch of Reagan papers -- an authority not authorized by the 1978 law. Then in November 2001, Bush issued an executive order rescinding Reagan's and giving the sitting president the right to review all records before their release and the right to block release of some. Using that executive order as justification, the Bush White House now is vetting thousands of pages of Roberts' papers archived at the Reagan Library before deciding which ones it will provide the Senate in anticipation of Roberts' confirmation hearings.

In addition, the White House is withholding thousands of pages of Roberts' writings from his time in the solicitor general's office from 1989 to 1993, claiming executive privilege. That claim is spurious, as the courts found when prosecutor Kenneth Start sought similar documents from the Clinton administration.

What we have here is an administration that has blatantly turned an act of Congress on its head, and it is ignoring both precedent and a court decision that reject its claim of "executive privilege."

This should outrage both Republicans and Democrats in the Senate. The easiest solution would be for Congress to pass a bill, introduced in 2003, rescinding Bush's 2001 executive order and restoring Reagan's from 1989, or pass a bill, introduced with bipartisan support in 2002, amending the Presidential Records Act to put limits on the powers Bush claims.

Since the Republican majorities in Congress are unlikely now to do either, it seems time to revive a lawsuit against Bush's 2001 executive order by historians, archivists and others that claimed it violated the 1978 law. That lawsuit was dismissed on technical grounds; the issue has never been decided on its merits. It would certainly seem ripe now for judicial review.

© 2005 Star Tribune

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