Charles McC. Mathias, a former U.S. Senator from Maryland, was mistakenly referred to in a story about Supreme Court nominee John G. Roberts Jr. as the late Charles McC. Mathias.
Roberts's Hand in Home Rule
Saturday, August 20, 2005
Supreme Court nominee John G. Roberts Jr. played a backstage role in a landmark home-rule fight in the District in the early 1980s, displaying a keen political sense for shielding his boss, President Ronald Reagan, during a controversial battle to roll back the power of D.C. officials.
In eight memos written during the 1983-84 episode, Roberts, then 28, emerges as a savvy White House associate counsel who helped guide a Justice Department push to limit D.C. officials' ability to change criminal statutes. He lobbied to camouflage White House involvement, softened the administration's rhetoric, headed off confrontation and fretted over leaks to city officials.
During a 15-week debate, Roberts's memos did not make explicit his views on home rule or the era's raw racial politics. His memos also offer no clues about how he might decide the current question of whether the District can obtain a vote in Congress without a constitutional amendment.
The memos were among thousands of pages of documents released in recent weeks from the Ronald Reagan Presidential Library in Simi Valley, Calif.
A 1983 U.S. Supreme Court decision striking down Congress's legislative veto powers triggered the District debate. The home-rule charter that established the city's locally elected government in 1973 included such a veto provision, and the Justice Department argued that the charter had to be amended. When Congress moved to fix the problem by loosening its control over the District, the Justice Department intervened with the White House's backing.
The Reagan Justice Department, pushed by Stanley S. Harris, the U.S. attorney for the District, and his principal deputy, Joseph E. diGenova, said that then-Mayor Marion Barry and the D.C. Council could not be relied upon to set criminal standards for the seat of the federal government.
"Stan Harris reacted with understandable horror at the prospect of giving such a free hand to the D.C. Council, particularly in criminal matters," Roberts wrote his boss, White House counsel Fred F. Fielding, in a memo dated Oct. 4, 1983.
In a Nov. 16 follow-up, Roberts wrote that "there is some good and some bad" to D.C. criminal legislation, and that "our U.S. Attorney's Office, however, which deals with these issues on a day-to-day basis, advised us that zany ideas have been blocked only because of the threat of Congressional veto."
Roberts, who moved to the White House from the office of the attorney general, supported diGenova's proposal, which required that the District obtain formal approval from Congress and the president to change criminal law -- a move Roberts called "unobjectionable." Before then, the city could make changes unless a majority of one house objected.
The dispute ignited a racially charged battle over how the Barry administration was managing drug crimes in the nation's capital and whether the conservative Reagan administration was patronizing the liberal, predominantly black city.
Doubt over the D.C. government's legal status blocked a $200 million bond issuance, and the D.C. Court of Appeals heard lawsuits seeking to overturn convictions under the city's sexual assault statutes. In the summer of 1984, diGenova, who had succeeded Harris, began a grand jury investigation into allegations of drug use by D.C. workers, including one employee with ties to Barry. The mayor responded by comparing prosecutors' efforts to an attempt to "lynch" him.
Throughout the debate, Roberts attempted to insulate Reagan from criticism by District allies in Congress, editorialists and civil rights leaders, who accused Reagan of turning back the clock on home rule. In five memos, Roberts stressed the need to "keep this issue away from the President and the White House and at the Department of Justice" or some variation.
In a Nov. 21 memo, Roberts edited Fielding's proposed correspondence to then-Council Chairman David A. Clarke and council member Wilhelmina J. Rolark (D-Ward 8), who chaired the judiciary committee, to omit acknowledging that the White House had advised the Justice Department in its reply to their concerns. The admission, Roberts wrote, suggests "that we were deeply involved in drafting the [Justice] letter, a view we want to dispel rather than discourage."
On Dec. 20, Roberts engaged in a bit of public relations, suggesting "use of a more neutral sobriquet than 'the Home Rule Act' " in referring to the dispute. He took his own advice on Jan. 6, 1984, citing an issue over the "District of Columbia Self-Government and Governmental Reorganization Act."
Roberts also demonstrated his political sensitivity in dealing with Congress. On Nov. 8, he wrote Attorney General Edwin Meese III's deputy for legislative affairs, Michael W. Dolan, that a Justice response to Congress "is far too confrontational," suggesting that instead of blasting a proposed bill head on, the department set a tone "of general support . . . with the one minor amendment we suggest."
Ultimately, the White House position was unsustainable. Congress proposed a compromise that would require the executive branch to take the lead in blocking D.C. statutes, a notion diGenova embraced, but Roberts noted that it would force the president "to be clearly out front" in "too sensitive a position" on local criminal debates.
By September, with a Democrat-controlled House staunchly at the city's side and such Republican moderates as the late Charles McC. Mathias of Maryland and Sen. Arlen Specter (Pa.) in charge of Senate oversight panels, Barry won passage of a bill that required a majority vote by both houses and the president's concurrence to block D.C. legislation. Meese endorsed the deal.
"I learned from the episode, as I have learned over the years, that John Roberts was a brilliant lawyer," said diGenova, who is in private practice. "He was appropriately -- appropriately -- politically sensitive to various questions and conducted himself with appropriate restraint and good judgment."