Supreme Court nominee John G. Roberts Jr. advised the Reagan administration's attorney general that "it makes eminent sense" to seek legislation permanently barring the use of employment quotas to redress discrimination and prohibiting the busing of students to foster the integration of schools, according to newly disclosed archival documents.
The March 15, 1982, recommendation to enact administration policy into law came up in a written assessment that year by Roberts and a colleague in the office of then-Attorney General William French Smith of legal issues raised by conservative groups.
Roberts and Caroline Kuhl, who were special assistants to Smith, said the aim of enacting new laws on these two topics was "to guarantee that our policies cannot be easily undone." They also advised strengthening the practice of mediation -- in lieu of litigation -- as a way to "abate the influence of the courts," noting that in addition to the American Bar Association, "certain Christian fundamentalist groups have formed negotiation programs."
The memo was among several written by Roberts, and released yesterday by the National Archives and Records Administration, that pointed up the nominee's partisanship in his early jobs at the Justice Department and the White House. The records were released in response to Freedom of Information Act requests by The Washington Post and other organizations.
In a form filled out by Roberts when he was being considered for a senior Justice Department position in 1989, for example, he listed among his qualifications "legal opposition research" for a group called Lawyers for Bush/Quayle, which was active in the 1988 presidential election. He did not detail what he researched.
In a memo written in 1983, after Roberts moved from the Justice Department to the White House counsel's office, Roberts left open the possibility that he agreed with a statement that the Equal Employment Opportunity Commission -- which is responsible for enforcing laws against discrimination -- was "un-American."
The memo, sent by Roberts to White House counsel Fred F. Fielding on June 7 of that year, noted that a citizen had written President Ronald Reagan to complain that the EEOC was "un-American" and that "he will hold the President to his promise to get rid of it." The letter was shunted to Roberts, who told Fielding he could not confirm that Reagan had made such a promise.
"We should ignore that assertion in any event," Roberts said, "as well as the assertion that the EEOC is 'un-American,' the truth of the matter notwithstanding. I have drafted a deliberately bland response for your signature."
Roberts is already on record as a critic of the EEOC, having written a memo in June 1982 that accused it of taking positions that were "totally inconsistent" with Reagan's civil rights policies. He urged then that its legal filings be more closely monitored by the Justice Department.
Wade Henderson, executive director of the Leadership Conference on Civil Rights, which has criticized Roberts's record, called his memo "unconscionable and unacceptable." Henderson said that "this is just another indication of Roberts's blatant disregard for protecting our civil rights."
Steve Schmidt, a spokesman on Roberts's nomination who works for Vice President Cheney, said the phrase in question does not refer to the "un-American statement" but to the letter writer's assertion that Reagan had called for the abolishment of the EEOC. Schmidt said any other interpretation would represent a distortion.
In their memo, Roberts and Kuhl -- who now sits on the California state Supreme Court -- surveyed conservative opinions as expressed by the Heritage Foundation and publications such as Human Events and National Review. They warned explicitly that Reagan's opposition to affirmative action quotas and busing to achieve racial balance in public schools "could be instantly reversed" by a new administration.
They also called attention to other conservative concerns, including demands that the administration repeal a requirement of government contractors to hire the handicapped, that it oppose gun control legislation and the Equal Rights Amendment, and that it support an effort to amend the Constitution to protect the "unborn child's right to life."
In another memo, written from his White House post in January 1984, however, Roberts noted that the Reagan administration had already incurred political costs "in promoting the interests of Fundamental Christians in general" and urged Fielding to ignore a plea by the head of Bob Jones University to intervene in an immigration case. "A restrained reply to his petulant paranoia is attached for your review, telling Jones, in essence, to go soak his head," Roberts wrote.
Meanwhile, Roberts met for an hour yesterday with the Judiciary Committee's top Democrat, Sen. Patrick J. Leahy (Vt.). He advised the nominee to expect questions at next week's hearing on whether President Bush tried to be "above the law" in setting torture policy for terrorism suspects.
Leahy told reporters he gave Roberts a copy of a controversial memo prepared by senior Justice Department officials in 2002 -- and later disavowed by the administration -- that contended U.S. officials could only be prosecuted for abusing detainees if the abuse was "of an extreme nature."
Leahy said he gave Roberts the memo because "I assume that there will be some questions on what it says to the effect of: Is the president above the law?" Leahy also chastised the White House and the National Archives for allowing a file from Roberts's records, dealing with the sensitive topic of affirmative action, to disappear after its review by White House and Justice Department lawyers.
"We're still waiting for some materials that the White House reviewed and have somehow been lost," Leahy said. He rejected an offer of administration officials' notes and recollections about the missing materials. "I'd like to see them myself," Leahy said.
His statement was less harsh than his assertion last week that Roberts had "expressed views that were among the most radical being offered by a cadre intent on reversing decades of policies on civil rights, voting rights, women's rights, privacy and access to justice." Yesterday, Leahy said if senators decide to vote for Roberts, they have "a duty" to explain "why people should not be afraid" of him.
Staff writer Jo Becker contributed to this report.