The Nominee As a Young Pragmatist

Supreme Court nominee John Roberts, right, visits with Sen. Edward M. Kennedy (D-Mass.), a member of the Judiciary Committee.
Supreme Court nominee John Roberts, right, visits with Sen. Edward M. Kennedy (D-Mass.), a member of the Judiciary Committee. (By Melina Mara -- The Washington Post)

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By Jo Becker and Amy Argetsinger
Washington Post Staff Writers
Friday, July 22, 2005

As an up-and-coming young lawyer in the White House counsel's office from 1982 to 1986, John G. Roberts Jr. weighed in on some of the most controversial issues facing the Reagan administration, balancing conservative ideology with a savvy political pragmatism and a confidence that belied his years.

Asked to review legislation that would have prohibited lower federal courts from ordering busing to desegregate public schools, Roberts, now President Bush's nominee to the U.S. Supreme Court, took on no less a conservative legal scholar than Theodore B. Olson, who at the time was an assistant attorney general and later served as the solicitor general under Bush.

Olson had argued that based on his reading of case law, Congress could not flatly prohibit the busing of children to achieve racial balance in public schools. That argument did not impress Roberts, who was two weeks past his 29th birthday.

"I do not agree," Roberts wrote to White House counsel Fred F. Fielding in a memo dated Feb. 15, 1984. Congress has the authority "and can conclude -- the evidence supports this -- that busing promotes segregation rather than remedying it, by precipitating white flight."

But, he added, "Olson's view has already gone forward as the Administration view, and it would probably not be fruitful to reopen the issue at this point."

The memo -- and others like it that are available at the Ronald Reagan Presidential Library in Simi Valley, Calif. -- offers a revealing glimpse into the mind of a judge whose relatively short two-year tenure on the U.S. Court of Appeals for the D.C. Circuit has produced few clues on how he would vote on key issues facing the high court. Until now, the views that Roberts held in eight years as a government lawyer have remained largely unknown.

Before serving as an associate counsel in the Reagan White House, Roberts worked at the Justice Department under Attorney General William French Smith. He returned to the department in 1989, serving as principal deputy solicitor general under President George H.W. Bush.

The Reagan-era memos portray a cocksure young lawyer whose writing was clear, highly attuned to political realities and occasionally sarcastic.

Take, for instance, Roberts's response to a request sent by then-Rep. Elliott Levitas (D-Ga.) to Reagan. In 1983, the Supreme Court struck down laws that contained provisions for Congress to veto actions taken by executive departments and agencies. Levitas wanted to meet with Reagan to determine "the manner of power sharing and accountability within in the federal government." The request offended Roberts's notion of the proper separation of powers.

"There already has, of course, been a 'Conference on Power Sharing,' " Roberts wrote, sarcastically referring to the convention at which the Constitution was drafted. "It took place in Philadelphia's Constitution Hall in 1787, and someone should tell Levitas about it and the 'report' it issued."

Fielding said yesterday that during Roberts's tenure in the Reagan administration, he was known for his intelligence and dry sense of humor. While Fielding declined to comment on the specifics of any of Roberts's writings, he said they were in line with what he demanded from all his lawyers.

"My staff's role was to stimulate thoughts," Fielding said. "I encouraged people to give me their unvarnished analysis and personal views."


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