By Jo Becker
Washington Post Staff Writer
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.
In a letter sent yesterday to Attorney General Alberto R. Gonzales, the eight Democratic senators on the Judiciary Committee argued that Roberts's memos from that time frame are of "unparalleled relevance" to the Senate's constitutionally mandated duty to evaluate his fitness to serve on the Supreme Court. They chastised the Bush administration for what they called a "wholly inadequate response" to repeated requests to turn them over.
The documents, they argued, are all the more important now that Roberts has been chosen as a candidate to head the court, replacing the late Chief Justice William H. Rehnquist instead of retiring Associate Justice Sandra Day O'Connor.
When Rehnquist was nominated to become chief justice, some documents from his stint in the Justice Department that normally would have been shielded by attorney-client privilege were given to the Senate. When former solicitor general Robert H. Bork was nominated to the Supreme Court in 1987, he, too, turned over some of the same kind of material.
"President Bush should provide the information . . . rather than hiding behind a privilege that doesn't exist and encouraging Roberts to not answer questions," said Sen. Edward M. Kennedy (D-Mass.). "The American people deserve to know who John Roberts is and where he stands on the vital issues before the country."
But with Republicans in firm control of the Senate and Judiciary Committee Chairman Arlen Specter (R-Pa.) opposed to the request, all Democrats can do is urge the White House to reconsider.
While tens of thousands of pages from Roberts's days as a lawyer in the Reagan administration have been obtained under public records requests, the White House has said Roberts's memos from his tenure as principal deputy solicitor general are rightfully exempt. Administration officials argue that they are protecting an important principle: Lawyers in the solicitor general's office must be able to freely exchange ideas in cases in which they represent the American public, they say.
That position was supported by seven former solicitors general of both parties, who signed a letter objecting to a Senate request for similar memos written by Miguel A. Estrada, a Bush nominee to a federal appeals court slot.
Former solicitor general Walter E. Dellinger III, a Clinton appointee who co-signed the letter, said yesterday that there are key differences between Roberts and Estrada, not the least of which is that Roberts was a top political appointee to the solicitor general's office, while Estrada was not.
"There are legitimate arguments on both sides," Dellinger said. "But the fact that this is the Supreme Court makes it a closer question, although it is one I haven't taken a position on."
Former solicitor general Theodore B. Olson, who served under President George H.W. Bush, was more forceful. If members of Congress were asked to turn over private internal memos, they would be outraged, he said. Memos by solicitors general contain information that is private for a reason, he said, such as criticism of various judges or outlines of the weaknesses in the government's case.
"You can't get the kind of frank, confidential advice that you need if someone knows that it is going to eventually be made public," he said.