Files From 80's Lay Out Stances of Bush Nominee - New York Times

Files From 80's Lay Out Stances of Bush Nominee - New York TimesJuly 27, 2005
Files From 80's Lay Out Stances of Bush Nominee
By DAVID E. ROSENBAUM

COLLEGE PARK, Md., July 26 - As a young lawyer in the Justice Department at the beginning of Ronald Reagan's presidency, John G. Roberts advocated judicial restraint on the issues of the day, many of which are still topical, documents released Tuesday by the National Archives show.

He defended, for instance, the constitutionality of proposed legislation to restrict the ability of federal courts to order busing to desegregate schools.

On other civil rights issues, he encouraged a cautious approach by courts and federal agencies in enforcing laws against discrimination.

Judge Roberts, now on the federal court of appeals for the District of Columbia Circuit, also argued that Congress had the constitutional power "to divest the lower federal courts of jurisdiction over school prayer cases."

In another memorandum, he maintained that the Supreme Court, to which he is now nominated, overreached when it denied states the authority to impose residency requirements for welfare recipients.

This was an example, he wrote, of the court's tendency to find fundamental rights, like the right to travel between states, for which there was no explicit basis in the Constitution. "It's that very attitude which we are trying to resist," he wrote.

The documents released on Tuesday were the files, about 14,000 pages in all, that Judge Roberts kept from September 1981 to November 1982, when he was special assistant to Attorney General William French Smith. Judge Roberts was 26 when he took the position, his first job after working as a clerk for William H. Rehnquist, then an associate justice on the Supreme Court.

In a memorandum, Judge Roberts noted that he had spent his first day at the Justice Department helping Sandra Day O'Connor prepare for her confirmation hearings. In a line that will perhaps resonate as his own Supreme Court confirmation hearings draw near, he wrote: "The approach was 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."

David J. Mengel, a supervisor at the Archives, said the Justice Department reviewed the files over the weekend and copied some but did not remove any. He said the archivists deleted some personal information like home addresses and removed two documents altogether to protect grand jury secrecy and personal privacy. These files were cleared for release by the Clinton administration, but had received little attention before Judge Roberts's nomination to the Supreme Court one week ago.

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, received copies of the files from those years on Tuesday. Republicans and Democrats on the panel are at an impasse over the timetable for the confirmation hearings, and over access to other documents pertaining to Judge Roberts's government service.

Although Judge Roberts's stint at the Justice Department was brief, the new Republican administration was rethinking and changing many of the policies that had been established in the Carter administration and earlier. Judge Roberts then moved to the White House counsel's office, where he stayed until 1986. About 4,000 pages of Judge Roberts's files those years are available at the Ronald Reagan Presidential Library in Simi Valley, Calif. Judge Roberts's duties seemed to cut across many of the hottest matters before the Justice Department. He addressed a wide variety of issues in his memorandums and quoted the views of legal scholars ranging from Chief Justice John Marshall to Antonin Scalia, a law professor at the time who is now an associate justice on the Supreme Court.

In one handwritten memorandum, Judge Roberts suggested his view of how the Constitution should be interpreted, saying, "real courage would be to read the Constitution as it should be read," without attention to what outside commentators were writing.

On the matter of proposed legislation limiting the power of courts to order school busing, such a restriction would not have "an invidious discriminatory purpose," he wrote in a memorandum to Mr. Smith. "Indeed," he said, "the bill would protect all students from transportation to schools distant from their homes, irrespective of their race."

"We do not believe busing is necessary" to ensure equal educational opportunity, he declared.

Judge Roberts's views on abortion are not laid out in what he wrote in these years. But in October 1981, he attended a conference at the American Enterprise Institute on judicial power and observed that most of the participants "recognized a serious problem in the current exercise of judicial power" as illustrated "by what is broadly perceived to be the unprincipled jurisprudence of Roe v. Wade."

On civil rights laws, Judge Roberts recommended against an expansive approach to enforcement.

In December 1981, the United States Commission on Civil Rights issued a report broadly defending affirmative action as a way to combat pervasive discrimination. Judge Roberts wrote a blistering critique, saying the "obvious reason" affirmative action programs had failed was that they "required the recruiting of inadequately prepared candidates."

In a memorandum to the attorney general in August 1982, he expressed support for a federal district court decision limiting the reach of a law against sex discrimination in educational institutions receiving federal aid. Judge Roberts said the law, called Title IX, applied only to specific programs that received federal aid, not to the entire university that maintained the programs.

"Under Title IX federal investigators cannot rummage willy-nilly through institutions but can only go as far as the federal funds go," he wrote.

Such restraint is a theme that ran through much of Judge Roberts's work and was evident in some of his comments on judicial reasoning. In reviewing the decisions of one judge, for example, Judge Roberts criticized a tendency to decide issues that were ultimately irrelevant to the case.

Judge Roberts also worried about the ability of courts to cope with an ever-rising number of cases unworthy of judicial attention. In one memorandum, he strongly criticized what he called the overuse of the writ of habeas corpus, a legal procedure often employed to challenge criminal convictions.

He argued that the writs overwhelmed the courts, were "frequently frivolous" and made "a mockery of the entire criminal justice system." In later years, Congress did set limits on the use of habeas corpus.

In several memorandums, Judge Roberts displayed a shrewd understanding of how Washington works. Responding to a letter from the American Jewish Committee in 1981, he asked a supervisor, "Is this draft response O.K. - i.e., does it succeed in saying nothing at all?"

Robert Pear, Jonathan D. Glater, Glen Justice and Kristen Lee contributed reporting for this article.