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A Charter Member of Reagan Vanguard

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These policies provoked substantial controversy when applied to civil rights. The Washington Council of Lawyers, a nonpartisan group that included some government lawyers, said in a September 1982 report that the Justice Department had "retreated from well-established . . . policies," disregarded principles embraced by the courts and Congress, and created new legal precedents that impeded minority rights in employment, housing, voting and education.

But Roberts denied in memos written at the time that what he called the "critics" were correct about the administration's lax enforcement, and he also complained bitterly in a statement drafted for Smith about the "disingenuous accusations of those who, for political reasons, seek to cloud rational discussion with false charges of racism."

A generation later, it is difficult to discern the extent to which Roberts, a federal judge for just two years, still holds these views and to determine how he might exercise them if the Senate confirms his nomination next month. Much of the work he and like-minded colleagues carried out during the early Reagan era has echoes in the few papers released so far from Roberts's files in his later job as associate counsel at the Reagan White House.

Fein said Roberts had deeply held convictions during his tenure at the Justice Department, and "these aren't principles that evaporate or walk away."

Limit Government's Role

In August 1981, less than a month after Roberts started working at Justice, he wrote a memo for the attorney general about a meeting that Arthur S. Flemming, chairman of the U.S. Commission on Civil Rights, had requested to discuss what Roberts called "the purported need for race-conscious remedies such as busing and affirmative action."

In the memo, Roberts derided a report Flemming had passed along from his own staff, laying out the commission's reasons for favoring such strategies. Roberts wrote that the report "is subject to serious criticism" and advised the attorney general: "If a meeting is held with Mr. Flemming, a strong response to his view of civil rights enforcement could be made."

Flemming was dismissed by Reagan in 1982 and replaced by Clarence Pendleton, whom Roberts praised in a July 7 memo to Smith that year, noting that he "generally agrees with our anti-busing and anti-quota principles."

Later in 1981, Roberts stepped in after low-ranking lawyers in the Justice Department's civil rights division advised two school systems near Atlanta to offer jobs and back pay not only to those who had been turned down for work because of discriminatory policies but also to those who could show they were deterred from applying for jobs at the schools because of bias.

When word of this advice reached Roberts, he fired off a three-page note to Reynolds and Cooper, stating that the division's demand did not faithfully reflect the law. "A strong argument can be made that back pay for non-applicants should not be sought," Roberts said. He called such a requirement "staggering" and noted that "even such an extreme liberal" jurist as Judge James L. Oakes of the U.S. Court of Appeals for the 2nd Circuit had not approved of such penalties.

Cooper said that he does not recall details of the dispute but that the memo is consistent with Roberts's overall view at the time "that there had been excesses in the civil rights remedial approaches of the prior administration."

Other memos by Roberts similarly argued for reining in the federal government's role in civil rights disputes. They indicate, for example, that he was at the center of articulating and defending the administration's policy that the Voting Rights Act -- a seminal law passed in 1965 and up for renewal in 1982 -- should in the future bar only voting rules that discriminate intentionally, rather than those that were shown to have a discriminatory effect.

After the House rejected administration concerns and passed a bill embracing the more broad "effects" standard in October 1981 by a vote of 389 to 24, Roberts wrote in a memo to Smith, "my own view is that something must be done to educate the Senators on the seriousness of this problem." He argued in a memo to Starr that the House bill made sense only if "our laws were concerned with achieving equal results rather than equal opportunity."


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