“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”. –Todd Zywicki, Professor of Law at George Mason University