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Documents Show Roberts Influence In Reagan Era

Continuing his courtesy visits to senators, Supreme Court nominee John G. Roberts Jr., center, talks to Sen. Kay Bailey Hutchison (R-Tex.) near her office.
Continuing his courtesy visits to senators, Supreme Court nominee John G. Roberts Jr., center, talks to Sen. Kay Bailey Hutchison (R-Tex.) near her office. (By Melina Mara -- The Washington Post)

The three appear to be to Harvard Law School professor Laurence H. Tribe, New York Times columnist Anthony Lewis and then-American Bar Association President David R. Brink, who opposed the bills.

Roberts added skeptical margin notes again when Olson wrote that the bills were unnecessary because the court now had more Republican-appointed members than it had in the 1960s, and was moving to the right as a result.

Roberts underlined the name of one of the Republican appointees Olson listed, Justice Harry A. Blackmun, the author of Roe v. Wade , and drew an arrow connecting it to the word "abortion."

Later, then-counselor to the attorney general Kenneth W. Starr asked Roberts to prepare a memo that "marshals arguments in favor of Congress' power to control" the Supreme Court's jurisdiction. Roberts noted as a result that his memo "was prepared from a standpoint of advocacy of congressional power . . . [and] does not purport to be an objective review of the issue."

Roberts approvingly cited comments by "Professor Scalia" -- then-University of Chicago law professor Antonin Scalia -- at a conference on the bills. Scalia "recognized that non-uniformity in the interpretation of federal law could be criticized as 'sloppy,' but asked: compared to what? Given the choice between non-uniformity and the uniform imposition of the judicial excesses embodied in Roe v. Wade, Scalia was prepared to choose the former alternative."

Roberts also took issue with the view that bills restricting the court's jurisdiction would be unconstitutional because they interfere with "fundamental rights." "None of the pending bills concerning jurisdiction in abortion or school prayer cases directly burden the exercise of any fundamental rights," he wrote.

The department eventually adopted Olson's view.

In 1982, Roberts urged the attorney general not to back a Department of Education investigation of alleged sex discrimination in athletics at the University of Richmond.

Previously, the Carter administration had sided with the Education Department, arguing that Title IX gave the federal government wide authority over all programs at a federally funded university, whether the specific program received federal money or not.

But Roberts agreed with Reynolds's decision for the civil rights division not to appeal a contrary ruling by a district judge, arguing that "under Title IX, federal investigators cannot rummage willy-nilly through institutions, but can go only as far as the federal funds can go."

"The women's groups pressuring us to appeal would have regulatory agencies usurp power denied them by Congress to achieve an anti-discrimination goal. Under your leadership the Department is committed to opposing such legislation by the bureaucracy and that commitment should continue in this case," Roberts wrote.

In 1981, outgoing U.S. Commission on Civil Rights Chairman Arthur Flemming wrote a report lauding the accomplishments of affirmative action. That document landed on Roberts's desk for a critique. He derided what he called the "perfectly circular" arguments in favor of affirmative action, as well as Flemming's contention that any affirmative action failures are caused not by inherent flaws but instead by sabotage.

"There is no recognition of the obvious reason for failure: the affirmative action program required the recruiting of inadequately prepared candidates," Roberts wrote. As a postscript, he added: "I have drafted an innocuous reply to Chairman Flemming. The report is attached, although I do not recommend reading it."

In September 1982, Roberts played the role of diplomatic coach, advising Smith on how to handle an upcoming meeting with Coretta Scott King, the widow of the slain civil rights leader. The Carter administration's Justice Department had supplied a $250,000 grant to the Atlanta-based King Center for Non-violent Social Change, to teach conflict resolution in the hopes of reducing violent crime.

The grant, approved in 1980, had run out and the Reagan administration planned not to renew it. Roberts, in a Sept. 16, 1982, memo, called the program "very poorly run" and said that it had only received funding because of "political ties" between King and Homer Broome Jr., a black Justice Department official. But rather than share those concerns bluntly with King, Roberts advised, Smith should instead tell her "there is simply no money available for additional funding," and "indicate support for the activities of the King Center, and even pleasure that the Justice Department was able to be of assistance in advancing" its goals.

The trusted role Roberts played at the Justice Department was evident from his first day on the job when he began helping prepare Sandra Day O'Connor for her nomination to the Supreme Court. Roberts has now been nominated to succeed her.

In a memo, he outlined a plan for O'Connor not unlike the one now being undertaken on his behalf: "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."

Staff writer Charles Lane and researcher Jill Bartscht contributed to this report.

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