Work on Rights Might Illuminate Roberts's Views
Thursday, September 8, 2005
In 1990, the Federal Communications Commission asked the first Bush administration to defend a policy aimed at encouraging more minority ownership of broadcast stations. As the number two man in the solicitor general's office, John G. Roberts Jr. played a critical role in the government's decision to reject the request, according to documents that came to light yesterday.
The case was one of hundreds that Roberts, President Bush's pick to become chief justice of the United States, handled during his tenure from 1989 to 1993 as principal deputy solicitor general. It is also one of 16 cases that Democrats are demanding to learn more about as they prepare for next week's confirmation hearings, a request they renewed yesterday.
The documents offer a rare glimpse into a time in Roberts's life that has remained largely shrouded, on an issue that is likely to be central to next week's hearings: Roberts's civil rights record.
Under then-Solicitor General Kenneth W. Starr, Roberts tackled a host of controversial issues, questioning the legality of affirmative action programs and co-writing a brief arguing that Roe. v. Wade , the 1973 case that legalized abortion nationwide, should be overturned.
The White House, however, has refused to turn over memos and other documents Roberts wrote during that time frame, contending it would have a chilling effect on the advice the government receives from its lawyers. Meanwhile, Roberts has argued that the positions he took on behalf of the government were not necessarily his own.
But Roberts had an influential hand in shaping the government's arguments, at least in the case involving a challenge to the FCC's policy of giving minorities an edge when it came to the awarding of radio and television broadcast licenses, according to documents found at the George H.W. Bush Presidential Library in Texas and provided by a source opposed to his confirmation as chief justice.
The FCC's policy was adopted at the urging of Congress, and the solicitor general's office usually defends agencies such as the FCC against legal challenges. But a Jan. 9, 1990, handwritten memo found in the files of Associate White House Counsel Fred Nelson suggested that Roberts was behind the office's refusal to do so. "John Roberts at SG handling. Reluctant to defend commission's position," the memo said.
The case had the potential to sweep aside similar minority preference programs throughout the federal government. Three days later, the chairman of the FCC wrote to then-Attorney General Richard L. Thornburgh, asking that he persuade the solicitor general's office to reconsider. Because Starr had recused himself, Roberts was acting as solicitor general. His view prevailed in the administration, and he went on to argue that the FCC's policy violated the 14th Amendment's equal-protection clause because it unfairly discriminated based on race.
The Supreme Court did not agree, ruling 5 to 4 against him; five years later, however, the high court reversed course in another case that invalidated many minority contracting programs.
Unlike internal documents in the solicitor general's office, the memos in the FCC case come from files outside that office that are subject to public records law. Because the solicitor general files are not subject to the same laws, Roberts's reasoning on this and many other cases remains unknown, and it is impossible to know how vigorously he pressed his own views.
Ralph G. Neas, president of the People for the American Way Foundation, which opposes Roberts's nomination, said the FCC documents "underscore the need for the Bush administration to stop stonewalling and turn over the solicitor general's memos."
The solicitor general is often known as "the 10th justice" because the office so frequently argues before the Supreme Court, representing government agencies and intervening in cases in which the federal government has an interest. Roberts's position as principal deputy solicitor general was the highest appointment he held before he was nominated to his current post as a judge on the U.S. Court of Appeals for the District of Columbia Circuit.