Released Papers Show Roberts Urging Discretion

Supreme Court nominee John Roberts advised then-nominee Sandra Day O'Connor to avoid specific statements during her confirmation hearings, according to documents newly released from the National Archives. Roberts served in the Reagan administration from 1981-82.

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When Supreme Court nominee John Roberts first served in the Reagan administration, he helped advise Sandra Day O'Connor. At the time she was preparing for Senate confirmation hearings. Memos from Roberts to O'Connor are part of a new batch of documents from Roberts' past government jobs. They were released today by the National Archives. NPR's Don Gonyea reports.

DON GONYEA reporting:

In the fall of 1981, Roberts was a brand-new employee at the Justice Department, fresh from his clerkship for Supreme Court Justice William Rehnquist. Roberts was asked to prepare drafts of possible answers to questions Sandra Day O'Connor might get from senators at her confirmation hearings. As it turns out, Roberts, then 26 years of age, was providing advice to the woman he would one day be nominated to replace on the court.

In a memo to O'Connor dated September 9th, 1981, Roberts told her not to allow senators to pin her down, saying, quote, "The proposition that the only way senators can ascertain the nominees' views is through questions on specific cases should be rejected."

Then eight days later Roberts sent a memo to Kenneth W. Starr, who was later to become the Whitewater special prosecutor but who was, at the time, the counselor to the attorney general. On that day Roberts wrote to Starr that his essential advice to O'Connor was, quote, "to avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments." Roberts also wrote to Starr that he participated in two moot court sessions with O'Connor, essentially practice sessions for her upcoming hearings.

In essence, Roberts was getting an early start for what he is now preparing to go through himself 24 years later, with Democrats on the Judiciary Committee expecting to ask Roberts very specific questions about issues such as the Roe v. Wade abortion ruling Justice O'Connor was asked nearly a quarter century ago.

Since becoming President Bush's choice to replace the retiring justice, Roberts has said very little about his views on anything. He's mostly been seen smiling in pictures with various members of the Senate Judiciary Committee as he made the rounds on Capitol Hill. But this past February, months before being tapped by Mr. Bush, Roberts gave a speech at Wake Forest University in which he talked about being a judge, something he's been since 2003. He told his audience that he found out that deciding cases was, quote, "a lot harder than I thought it would be." Here he is at that event. The audio is a little distant, recorded by a home video camera across the room.

(Soundbite of tape)

Judge JOHN ROBERTS (Court of Appeals, Washington, DC): I kind of thought that in most of the cases, that would be pretty obvious--be pretty clear that this person should lose, this person should win, and you'd spend most of the time trying to--writing the opinions. I've found that I've had to spend far more time than I thought I would just getting to that first step about what the right answer should be.

GONYEA: Again, Roberts says at the end there, `I've found that I have to spend far more time than I thought I would just getting to that first step, what the right answer should be.' In that same speech, he also spoke of how he comes to a decision. He said he often changes his view along the way as he gets more information.

(Soundbite of tape)

Judge ROBERTS: It is not at all unusual, in my own experience, to have one view of the case when you finish reading your briefs, a different view of the case when you sit down and debate it with your law clerk, another view of the case after all argument.

GONYEA: Those lines may not be very satisfying for those trying to determine just what kind of Supreme Court justice Roberts will be. But they may prove to be as candid as he gets, even as he sits before a panel of senators at confirmation hearings set to begin on September 6th. Don Gonyea, NPR News, Washington.

BLOCK: You can hear John Roberts' entire speech at Wake Forest and access the newly released documents on the Supreme Court nominee at our Web site, npr.org.

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