Democrats Want to See Additional Roberts Documents

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The White House has released thousands of documents written and compiled by Supreme Court nominee John Roberts. Senate Democrats have criticized the Bush administration for not releasing more. Roberts has been nominated to succeed Sandra Day O'Connor on the high court.

STEVE INSKEEP, host:

This is MORNING EDITION from NPR News. I'm Steve Inskeep.

RENEE MONTAGNE, host:

And I'm Renee Montagne.

The White House is refusing to release tax returns of Supreme Court nominee John Roberts as well as many key documents from his tenure in public service. However, the administration did make available limited documents dating back to the year that Roberts served as an assistant to the attorney general in the Reagan administration. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG reporting:

The documents released at the National Archives late yesterday afternoon number in the thousands of pages, but only a relative few are in Roberts' own words. What there is, however, is an indication of why the Democrats want to see more from Roberts' years in the Reagan White House and from his tenure as a political deputy to Solicitor General Kenneth Starr during the administration of President George H.W. Bush.

The focus yesterday, though, was on the years 1981 to '82. From the moment of his arrival at the Justice Department in the fall of 1981, Roberts was immersed in the legal and political battles of the day. Ironically, his first assignment was to work on a team preparing Supreme Court nominee Sandra Day O'Connor for her Senate confirmation hearings. In a memo for an international departmental history, Roberts described his role in preparing draft questions and answers for O'Connor. Quote, "The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court, while at the same time demonstrating through the answer a firm command of the subject matter and arguments on both sides."

Roberts is likely to repeat that exercise in preparing for his own confirmation hearings. But while Sandra Day O'Connor had a genuinely tiny paper trail, it turns out that John Roberts has more of one than might have been suspected as evidenced by these files and a few memos from his White House years that have already been released. The Bush administration has not yet said whether it will expedite the release of the other White House memos, but it has said it will not allow the release of Roberts' memos from the period when he served as deputy solicitor general, a period in which he wrote briefs that argued, among other things, for the reversal of Roe vs. Wade. The White House maintains that anything Roberts wrote during that period is protected by attorney-client privilege and that to release the material would chill future lawyers representing the president from giving candid advice.

But Democrats aren't buying that argument. Yesterday, at an unrelated hearing, Senator Patrick Leahy said he viewed the documents released by the White House yesterday as nothing more than symbolic.

Senator PATRICK LEAHY (Democrat, Vermont): I love watching symbolic things and I want to be here for that, but then I want to come back if we're going to do the substantive one.

TOTENBERG: Symbolic they may be, but they still say a good deal about Roberts and his views. Time after time, Roberts takes the hardest of hard lines, often pitting himself against other conservatives within the administration. He repeatedly butted heads with a far more senior official, Theodore Olson, who two decades later would successfully argue Bush vs. Gore for then-Governor George Bush and go on to become solicitor general for the next four years.

But back in 1982, Olson was the assistant attorney general for the Office of Legal Council, the office that provides legal advice to the president. And Olson was asked to give a legal opinion on the constitutionality of various bills in Congress that would have stripped the federal courts of the power to rule on such questions as school prayer, school busing and abortion. In a memo summarizing the pros and cons of the proposed legislation, Olson concluded that while scholarly opinion was divided on the constitutionality, opinion among scholars, judges and lawyers overwhelmingly opposed the idea as bad policy and a threat to the American system of checks and balances. `Were the president to oppose the legislation as unconstitutional, that position,' said Olson, `would be viewed by the press and public as a courageous and principled decision.' In an acid rejoinder written in the margin, Roberts wrote, `Real courage would be to read the Constitution as it should be read and not to kowtow to liberal thinkers.'

In another memo, Roberts argued for a narrow interpretation of the landmark law barring sex discrimination in intercollegiate athletics. Overall, Roberts repeatedly allied himself with the department's head of the Civil Rights Division, William Bradford Reynolds, against the solicitor general, Rex Lee. Roberts accused Lee of being, essentially, weak-kneed in backing the more traditional civil rights positions taken by the Equal Employment Opportunity Commission instead of the more hard-line positions taken by the assistant attorney general, Reynolds.

But in some cases, Roberts even butted heads with Reynolds, arguing against some of the gender and race employment discrimination cases that Reynolds wanted to file. In June of 1982, Roberts took on both the Supreme Court and his own boss, the attorney general. In a memo to Attorney General William French Smith, Roberts wrote disparagingly of a Supreme Court opinion handed down that day in which the court ruled it was unconstitutional for the state of Texas to ban public education for children who are illegally in the United States. The vote was 5-to-4 with Justice Louis Powell casting the decisive fifth vote. Roberts observed in his memo that the Solicitor General's Office had not filed a brief in the case, presumably because there was no federal government issue at stake. `But,' added Roberts, `the briefs for the state were quite poor, and it is my belief that if the solicitor general had filed a brief, it would have made all the difference.' In some, the young assistant pointedly told his boss, `This is a case in which our supposed program to encourage judicial restraint did not get off the grounds and should have.'

Race and affirmative action are subjects that Roberts spends a good deal of time on in his memos and there's an edge to his tone that does not often exist elsewhere. Writing about a report from the Commission on Civil Rights that advocates affirmative action, Roberts said, `The logic of the report is perfectly circular.'

Inside the administration, he opposed changes to the Voting Rights Act that civil rights groups said were needed, changes, that in the end, were largely adopted by Congress and signed into law by President Reagan.

Indeed, Roberts was infuriated by statements made by the only African American in the Reagan Cabinet, Samuel Pierce, who was quoted as favoring the compromise bill to stave off the alternative proposed by the attorney general, William French Smith. `The Smith alternative,' said Pierce, `would have cut the very heart out of the Voting Rights Act.' On seeing this remark in print, Roberts wrote in the margin, `Is there anything we can do about Pierce's outrageous statements? I'd be happy to draft a letter for the attorney general.' Sure enough, shortly thereafter, a letter under Smith's name went out to Pierce. It said, `Assuming that The Washington Post accurately conveyed what you said, and I know that is something of an heroic assumption, I am at a loss to understand either the factual basis for your statement or what possible reason you could have had for it.'

Indeed, the documents released yesterday often reveal a public face for John Roberts that is somewhat at odds with the private face. After members of the American Jewish Committee met with Attorney General Smith to express their opposition to a bill that would have stripped the courts of the power to rule on questions of prayer in public schools, Roberts drafted a follow-up letter for the attorney general to sign. In a cover sheet, Roberts wrote, `Is this draft response OK?. I.e., does is succeed in saying nothing at all?'

And then there was a memo written in 1982 in preparation for a meeting between the widow of Martin Luther King Jr., Coretta Scott King and Attorney General Smith. Roberts' memo reports that the King Center had previously received a large grant from the Justice Department. `The King Center program,' he said, `was poorly run and had only been funded because of Mrs. King's political ties.' Roberts advised the attorney general on the approach that Smith should take at the meeting with Mrs. King: `Indicate support for the activities of the King Center, even express pleasure that the department has been able to fund the center's programs. But if she presses you for funds, you should tell her they are not available as in the past.'

Nina Totenberg, NPR News, Washington.

MONTAGNE: You can track John Roberts' career through a time line at npr.org.

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