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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)

Not a problem, the young lawyer explained in a memo dated Aug. 2, 1984.

A year earlier, the White House had been criticized for defending the right of discriminatory institutions to keep their tax exemptions, a battle it lost in the Supreme Court overturned. Now the White House appeared to be on the side of the black parents suing the Internal Revenue Service to investigate the school, run by Clarksville Baptist Church -- a stance that guaranteed "little press interest," Roberts said.

At the same time, Roberts wrote, the Justice Department could simply tell Lott "that Clarksville can still have its day in court" to defend its tax-exempt status -- "just not the Supreme Court."

He added: "If Lott complains, he should be advised that the present petition concerns a procedural matter and not the merits of Clarksville's tax-exempt status."

That same political acumen was on display in a memo dated Jan. 31, 1983, in which Roberts addressed the administration's pace on a housing discrimination bill. Some in the administration wanted to move quickly, since Reagan had hurt himself with many minority voters the year before when he was perceived to have dragged his feet on an extension of the Voting Rights Act.

"I think it is important, as the storm clouds gather over the issue of housing discrimination legislation, to recall what Mark Twain said of the cat who sat on a hot stove lid. The cat will never sit on a hot stove lid again, but it will also never sit on a cold one," Roberts wrote. "The fact that we were burned last year because we did not sail in with new voting rights legislation does not mean we will be hurt this year if we go slowly on housing legislation. . . . I do not think there is a need to concede all or many of the controversial points . . . to preclude political damage."

Less than six months later, Roberts did a final review of the bill. Everything seemed in order, he wrote, but he was concerned about language that suggested that the federal courts had historically enjoyed the confidence of the American people for their impartiality, independence and fairness.

"As a statement of historical fact this is untrue," Roberts noted. "The federal judiciary has been viewed by the American people with active distrust from the very beginning, when the Federalists packed the new courts to thwart the aspirations of Jeffersonian Republicans." But since the language had been inserted as an implicit criticism of a rival bill, he added, "I suppose it is tolerable."

Roberts often balanced his own views with political realities, as he did in a debate following the 1984 Supreme Court decision in a case called Grove City College v. Bell , in which the court determined that a 1972 federal law prohibiting sex discrimination in schools that receive government money applied only to those programs that received the funding, not the institutions as a whole.

The ruling, which threatened to upset dramatic gains for women's athletics among other programs, had prompted an outcry in Congress, and lawmakers were rushing to introduce bills that would again expand anti-discrimination rules across entire campuses. (A measure eventually succeeded, in 1988.) Administration officials were split over how to react. Some believed it was not fair that schools be forced to comply with such broad rules simply because they admitted students on federal loans and scholarships, and were arguing for a higher threshold.

That idea, Roberts wrote in a memo dated July 24, 1985, had "intuitive appeal." But as a "practical matter," he noted, it was too late for the White House to take that stance, since the administration had already conceded that argument before the Supreme Court. "Reversing our position on that issue at this point would precipitate a firestorm of criticism, with little chance of success," he concluded.

Protecting Administration

Roberts was similarly protective of the administration on an unrelated matter.

In 1982, the administration clashed with Congress over its refusal to hand over documents from the Environmental Protection Agency on Superfund sites. Anne Gorsuch Burford, the agency director, later said that she refused to hand them over at the request of Reagan and the advice of the Justice Department. But a few months later, the Justice Department stopped representing her -- saying it was involved in investigating EPA corruption -- and she was forced to resign in the spring of 1983.

A December 1982 memo suggests that Roberts may have had a hand in drawing up that strategy. In the memo, he opposed defending Burford by arguing that she could not have complied with a subpoena because Reagan ordered her not to produce documents. He wrote: "The downside is significant: a Congressional contempt citation against the President [which] could be very politically damaging. With Mrs. Gorsuch in the case there is at least a 'buffer' separating the President from the dispute."

An aide to Burford later called the whole episode a "coldblooded, treacherous act of political callousness."

On March 23, 1984, Roberts went beyond his lawyerly duties of reviewing an assistant attorney general's planned Hill testimony and acted as damage-control strategist instead.

A year earlier, the State Department had denied an entry visa to Hortensia Allende, widow of overthrown Chilean socialist president Salvador Allende, saying that her planned speech to California churches on women's and human rights issues would be "prejudicial to U.S. interests" because she was supposedly a member of a communist organization. At hearings later that spring, the department acknowledged that it had similarly denied entry to hundreds of people in recent years -- and then went on to deny entry to Nicaraguan Interior Minister Tomas Borge in December 1983.

"We recommend deleting specific mention of the denial of visas to the widow of Chilean president Allende and Nicaragua Interior Minister Borge" from the speech, he wrote. "Those denials were, and continue to be, particularly controversial, and there is no need to mention them in this testimony."

Argetsinger reported from Simi Valley, Calif. Research editor Lucy Shackelford contributed to this report.

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