washingtonpost.com
Judges Should Have 'Limited' Role, Roberts Says
Statement to Panel Cites Need for Restraint on Bench; Prior Documents Question 'Right to Privacy'

By Mike Allen and R. Jeffrey Smith
Washington Post Staff Writers
Wednesday, August 3, 2005

John G. Roberts Jr. said in a questionnaire released yesterday that he was first interviewed as a potential Supreme Court nominee in April and was questioned by Vice President Cheney in May, showing that the White House had been focusing on him months before a seat came open.

Roberts echoed the views of President Bush in describing his judicial philosophy. Roberts said that he views the role of judges as "limited" and that they "do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law."

Responding to a question about judicial activism, Roberts said, "When the other branches of government exceed their constitutionally-mandated limits, the courts can act to confine them to the proper bounds. It is judicial self-restraint, however, that confines judges to their proper constitutional responsibilities."

Advocacy groups said Roberts's pledge to respect established rulings is one indicator of how he might approach Roe v. Wade , which established a right to abortion. Nancy Keenan, president of NARAL Pro-Choice America, which supports abortion rights, said Roberts gave "lawyerly answers" and is "running a political campaign to create the appearance of open-mindedness."

The 67-page statement to the Senate Judiciary Committee is the first time that Roberts, now on the U.S. Court of Appeals for the District of Columbia Circuit, has commented substantively since Bush nominated him July 19. The White House did not previously disclose Cheney's role in questioning Roberts more than two months before he met Bush.

Separately, new documents released by the National Archives from Roberts's tenure as a senior adviser to the attorney general during the Reagan administration make clear that he was deeply skeptical of the court's recognition of a citizen's fundamental "right to privacy" -- the legal concept that underpinned its historic 1973 decision upholding a right to abortion.

Although the documents do not spell out Roberts's personal views on abortion, they add to previously released documents suggesting that he had more in common with those who dissented from the court's reliance on "fundamental rights" than he did with the rulings of its majority.

Roberts wrote in his statement to the committee that the proper exercise of the judicial role "in our constitutional system requires a degree of institutional and personal modesty and humility" and said it is "not part of the judicial function to make the law."

He said that Attorney General Alberto R. Gonzales interviewed him April 1, and that he met on May 3 with Bush confidants including Cheney, Gonzales, Chief of Staff Andrew H. Card Jr., Deputy Chief of Staff Karl Rove, White House counsel Harriet Miers and I. Lewis "Scooter" Libby, Cheney's chief of staff. Roberts said he was interviewed separately by Miers on May 23. Justice Sandra Day O'Connor announced on July 1 her decision to retire. Roberts said he had a telephone interview with Miers and deputy counsel William K. Kelley on July 8 and was interviewed by Bush on July 15, with Miers present. He said none questioned him about his views on any case or legal issue.

Roberts disclosed in the questionnaire that he served on the executive committee of D.C. Lawyers for Bush-Quayle in 1988, and was a member of the Republican National Lawyers Association from 1991 to 1994. He attached a 16-page financial disclosure report that showed assets of $6,067,000, up from the $4,052,548 he reported on his previous disclosure form, filed in 2003.

The new documents disclosed by the archive that reflect Roberts' skeptical views regarding a "fundamental" right to privacy include a lengthy article on judicial restraint that he apparently drafted for publication in a journal of the American Bar Association under the name of then-Attorney General William French Smith, his boss.

The article approvingly quoted from a dissenting opinion by Justice Hugo Black in a 1965 court decision, in which the majority held that a Connecticut law forbidding the use of contraceptives was unconstitutional. Black's opinion, as cited in the draft, complained that the court had used "a loose, flexible, uncontrolled standard for holding laws unconstitutional." The draft article said that "the broad range of rights which are now alleged to be 'fundamental' by litigants, with only the most tenuous connection the to Constitution, bears ample witness to the dangers of this doctrine."

The draft released from Roberts's files at the archive does not have his name on it, but a memo to Roberts from Bruce Fein, who then worked in the Justice Department, offers suggested changes on "your draft." Fein said in an interview yesterday that "my judgment is yes, that John wrote it."

A second memo, sent by Roberts to the attorney general on Dec. 11, 1981, summarized a lecture six years earlier by then- Solicitor General Erwin N. Griswold at Washington and Lee University, which touched on the same theme. Griswold's lecture, Roberts said, "devotes a section to the so-called 'right to privacy,' arguing as we have that such an amorphous right is not to be found in the Constitution. He specifically criticizes Roe v. Wade."

The words "so-called" do not appear in Griswold's lecture. But Roberts drafted a letter to Griswold, signed by Smith, saying he was cheered that Griswold made "many of the same points" that the administration had about these matters.

Two other new documents released by the Archives provide additional evidence that Roberts was skeptical of government efforts to use federal funding as leverage to enforce civil rights in schools. In one, Roberts told the attorney general he supported the repeal of rules barring schools from receiving federal funds if they had discriminatory dress codes. Then-Education Secretary T.H. Bell successfully pushed for the change, arguing that the regulation of dress codes was better left to local school officials. That, wrote Roberts in a July 1, 1982, memo, was "an eminently sound conclusion."

In a memo to the attorney general on Dec. 8, 1981, Roberts supported a proposed change in Education Department regulations, making clear that an anti-discrimination law did not apply to schools that received no direct federal aid. Roberts said that although the intent of the law's drafters was murky and the courts could conclude otherwise, "the case has not been made" that the law applies to schools "merely because" they receive indirect aid, through grants to students.

In a May 6, 1982, memo to Smith, Roberts outlined points for Smith to make during a scheduled interview with a Los Angeles Times reporter. Roberts advised Smith to stress that although the Justice Department continued to bring actions to "guard against impermissible discrimination," the average citizen is "no longer burdened by intrusive remedies which have not been proven to be effective."

As an example, Roberts wrote: "We no longer demand busing, so disruptive to the education of our children, or quotas, which have been so divisive in the workforce."

Staff writer Jo Becker contributed to this report.

© 2005 The Washington Post Company