In '81, Roberts Offered Counsel to O'Connor

John G. Roberts Jr., left, met with Sen. Bill Nelson. A new collection of documents involving Roberts's Justice Department tenure was just released.
John G. Roberts Jr., left, met with Sen. Bill Nelson. A new collection of documents involving Roberts's Justice Department tenure was just released. (By Evan Vucci -- Associated Press)
By Jo Becker and R. Jeffrey Smith
Washington Post Staff Writers
Thursday, August 11, 2005

Supreme Court nominee John G. Roberts Jr. once urged a previous nominee, Sandra Day O'Connor, not to tell members of Congress how she might vote in cases likely to come before the court.

In a memo written on the eve of O'Connor's Senate confirmation hearings in 1981, Roberts -- then a senior aide to the attorney general helping prepare her -- told her that answering such questions would create an "appearance of impropriety" because her answers might be seen as prejudicing the outcome of cases not yet argued before the court on which she would serve.

The memo appears to raise the possibility that Roberts will himself be reluctant to be pinned down on specific cases during confirmation hearings slated to begin Sept. 6. It is one of several hundred disclosed late yesterday on the National Archives and Records Administration Web site that reflect his outlook regarding what a justice should say or do.

"The proposition that the only way Senators can ascertain a nominee's views is through questions on specific cases should be rejected," Roberts told O'Connor in the Sept. 9 memo. He and a colleague in the attorney general's office also helped her strategize about how to avoid expressing her views on abortion -- a topic expected to figure prominently in Roberts's own confirmation hearings.

At the time, Sen. Jesse Helms (R-N.C.) had written a letter demanding to know O'Connor's views on Roe v. Wade . According to a 1981 memo by Carolyn Kuhl, also a special assistant to the attorney general, O'Connor wanted help in formulating "reasons for declining to answer questions concerning Roe v. Wade , and several other topics."

"John Roberts and I worked on a response to that letter" from Helms, Kuhl wrote. O'Connor never did answer specific questions about her position on Roe v. Wade . Helms voted to confirm O'Connor anyway, and once on the court O'Connor voted in favor of abortion rights.

Other documents released last night, also spanning 16 months in 1981 and 1982 during which Roberts was a special assistant to Attorney General William French Smith, add new details that illustrate the depth of Roberts's involvement in high-profile controversies over civil rights during the early Reagan years.

Just a year out of law school, Roberts was swiftly immersed in the administration's efforts to reverse desegregation policies conservatives saw as flawed, put certain civil rights matters beyond the reach of the Supreme Court and block a key voting rights bill approved by the House.

In 1982, for example, Roberts was asked by his boss, Kenneth W. Starr, counselor to the attorney general, to write a legal brief supporting the constitutionality of legislation that would limit federal court jurisdiction to decide cases involving public school prayer and busing to promote integration.

Conservatives backed such legislation because they disapproved of court decisions limiting school prayer and ordering busing. Starr told Theodore B. Olson, then head of the department's Office of Legal Counsel, that the purpose of Roberts's brief was to put on paper "the strongest case that can be made by those who feel" that Congress can legitimately curb "what are deemed to be judicial excesses," according to one of the newly disclosed memos.

Olson strongly disagreed with Roberts's memo, according to the documents. In a memo to Smith on April 26, 1982, Olson said he had formulated language spelling out why the legislation regarding school prayer "is impermissible under the Constitution."

"Unfortunately," Olson added without a detailed explanation, "Ken [Starr] and John [Roberts] are not" satisfied with that formulation.

Roberts was also heavily involved in defending the administration's opposition to a voting rights bill approved by an overwhelming margin by the House and pending before the Senate in late 1981 and early 1982.

He urged the attorney general to adopt an aggressive public relations stance, and at one point drafted a biting response to an op-ed piece by Vernon E. Jordan Jr., who had called President Ronald Reagan's endorsement of an extension for voting rights legislation "a sham." At the same time, he drafted -- at the request of others -- a proposed compromise on the bill.

The documents released yesterday were the third collection disclosed by the archives in response to Freedom of Information Act requests seeking any documents written, approved, initialed or signed by Roberts during his tenure at the Justice Department in two jobs eight years apart. Only some of the documents related to his work for Smith have been released so far, and those from his work as deputy solicitor general from 1989 to 1993 will not be released, according to the department.

Yesterday, Sen. Arlen Specter (R-Pa.), who chairs the Senate Judiciary Committee, prodded the White House to release other documents -- related to Roberts's tenure as associate White House legal counsel from 1982 to 1986 -- "without delay." Administration officials have said they are still reviewing the documents partly to assess whether they contain material that will prove to be controversial.

Staff writer Amy Goldstein contributed to this report.

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