Young Lawyer Roberts
THE THOUSANDS of pages of just-released government files involving Judge John G. Roberts Jr. offer a tantalizing glimpse of the Supreme Court nominee as a young lawyer. While it's dangerous to make judgments based on a quick and necessarily spotty reading of quarter-century-old documents, the picture that emerges from the first wave of papers, including a huge batch unveiled from Judge Roberts's tenure as an adviser to President Ronald Reagan's attorney general, shows a lawyer fully in tune with the staunchly conservative legal views of the administration he was serving -- and indeed, at times to the right of some of its leading conservative lawyers.
Those who fear or hope, depending on their political positions, that Judge Roberts might be a stealth nominee in the mold of Justice David H. Souter -- a supposed conservative whose performance on the bench turned out to be far more moderate than predicted -- will find no support for such predictions in the papers that have emerged so far.
The memos show a younger Mr. Roberts expressing hostility to affirmative action programs and to a broad application of the Voting Rights Act. Congress was rewriting the law, and Mr. Roberts was vocal about making certain that it apply only to practices that were intended to harm minority voters -- not to those that simply had the effect of doing so. He criticized the solicitor general's office for failing to "be sufficiently sensitive" to the administration's civil rights views. In one memorandum, Mr. Roberts recommended against having the Justice Department intervene in a sex discrimination case involving disparities in vocational training programs for male and female prisoners -- even though William Bradford Reynolds, the administration's staunchly conservative civil rights division chief, wanted to participate. One particular area of concern is Mr. Roberts's writings on the ability of state prisoners to have their claims heard in federal court, something that he argued the Constitution does not require. "The current availability of federal habeas corpus, particularly for state prisoners, goes far to making a mockery of the entire criminal justice system," Mr. Roberts wrote in a 1981 memorandum that foreshadowed the high court's subsequent moves to restrict state prisoners' appeals in federal courts. Some tightening was justified, but the high court and Congress have since gone too far in eroding meaningful review.
Another disturbing element of Mr. Roberts's writings is his willingness to let Congress strip the federal courts of jurisdiction to hear certain kinds of cases, such as abortion and school prayer, or to impose certain remedies, such as school busing. Though he questioned whether this was wise policy, Mr. Roberts viewed it as within congressional pre-
rogative. Here, again, the Justice Department aide was to the right of one of the administration's leading lawyers, then-Assistant Attorney General Theodore B. Olson. When Mr. Olson recommended opposing court-stripping bills, Mr. Roberts scrawled on the memo, "Real courage would be to read the Constitution as it should be read and not kowtow" to liberal lawyers and writers. The constitutionality of court-stripping is one of the great open questions of law, with the potential of dangerous congressional encroachment on judicial independence. Senators need to explore whether Judge Roberts stands by his youthful views.
Fittingly, Judge Roberts's first assignment at the Justice Department in 1981, fresh from his clerkship for Justice William H. Rehnquist, was to help prepare Sandra Day O'Connor for her confirmation hearings. As he recounted in a memorandum, "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." That proved to be a winning strategy, but the Senate deserves more from Judge Roberts than a simple restatement of the law.