MEMOS? I've been listening to the original hearings on Estrada back in September, which you can access from C-Span's court page here. Over at the Volokh Conspiracy, the most prominent (and best) cooperative blog on right, loosely defined, the argument has been floated that the Democratic search for memoranda has been a stalking horse for other, unstated and ultimately unpersuasive reasons for opposing Estrada. See, for example, here, here, here, here, here, here and here. The Conspirators' in-house dialogue was sparked by an attack on Senate Democrats published in the editorial page of the Washington Post, which you can read here. My original response to the WaPo article is here.

I hold to my original response to WaPo. I also am not persuaded that the judiciary committee wanted to tube the nomination by asking for material that it knew the Solicitor General would never supply (as the Conspirators claim). In the abstract, it's hard to imagine that the Solicitor General's interest in protecting "work product" should outweigh the Senate's claim to know something about the candidate it is supposed to be examining. The Democratic line here is that similar memos have been asked for and produced by DoJ before (in Bork, Easterbrook, Rehnquist hearings, etc.). Although it is hard to evaluate this claim given the partisan nature of the debate, I see no independent ground on which to stand in claiming that the memos should not be produced. Plus, the Democratic fuss over this matter has at least nudged the Republicans in the direction of holding another hearing for Estrada in exchange for a scheduled floor vote; we'll see how the Dems react, but it seems to me that they do, in fact, want the memos in question because they want to know more about Estrada, and they should, in fact, have access to them, the views of the Solicitors General notwithstanding. Why should the asserted institutional interests of one branch of DoJ trump the asserted desire of Senators to examine judicial candidates' views on legal matters?

The ready acceptance among many members of the public of the claim that Dems "did not expect" to get the memos in the first place can be attributed to a few factors: professional allegiances to lawyers as such (I guess this is at play over at the Conspiracy), partisanship (Reps have raised a fuss about the requests and tried, unconvincingly in my view, to distinguish earlier kinds of memo-giving from these kinds), a fear of the further messiness of the judicial nominations process (at the editorial meetings at WaPo, definintely) and the power of Presidential agenda setting.