As Democrats on the Senate Judiciary Committee try to cast doubt on whether John G. Roberts Jr. deserves to become chief justice of the United States, the main club they are wielding are his own words -- as glimpsed in memos he wrote, as a young but well-positioned legal adviser inside the Reagan revolution, on the most polarizing civil rights issues of a generation ago.
For two days, the Democrats have read excerpts -- and at times even handed the nominee copies of his own work -- on voting rights, sex discrimination, affirmative action, racial bias, and the possibility of stripping the Supreme Court of jurisdiction over certain kinds of rights cases.
To try to blunt the impact of this document assault, Roberts has employed a two-pronged strategy: He has asserted that his words and legal reasoning were merely those of a staff lawyer. And he has largely refused to embrace or disavow the views his memos espouse.
In response, as Roberts's confirmation hearings went through a third day, Democrats and their allies among liberal advocacy groups loudly contended that the memos provide a more revealing window onto the nominee's true beliefs than his testimony suggests. "He was an advocate," the Senate's most enduring liberal, Edward M. Kennedy (D-Mass.), said in an interview. "You can't read through those memoranda and not understand that he had a very strong commitment" to conservative values.
The centrality of Roberts's decades-old words to the minority party's strategy makes clear why Democrats worked intensely -- and with limited success -- this summer to pry loose all the nominee's records from his tenure in two Republican administrations. Roberts worked as a special assistant to then-Attorney General William French Smith in 1981 and 1982, then spent four years in the White House counsel's office. He returned to the government in 1989, as deputy solicitor general under President George H.W. Bush.
Lacking papers from his solicitor general's years -- the current Bush administration has refused to release them -- and with a thin record of rulings from Roberts's two years as a federal appellate judge, Democrats are drawing their ammunition from the early Reagan era.
Those were tempestuous years on civil rights, as the conservatives who had entered the government tried to curtail use of the courts to remedy discrimination. "They were flipping the script with respect to whose interests they were going to protect," said Theodore M. Shaw, president of the NAACP Legal Defense and Educational Fund, which is opposing Roberts. "He was in the thick of it."
During the past two days, some of the most extensive questioning of Roberts's memos stems from his work on voting rights. In 1982, following a Supreme Court ruling two years earlier, Congress altered the Voting Rights Act to make clear that the law prohibited voting practices that had the effect of denying any groups the ability to elect candidates of their choice, regardless of whether the practices were specifically intended to have that effect. During Roberts's time in the attorney general's office, the Reagan administration opposed that change, preferring a more restrictive standard that outlawed intentional voting discrimination.
On Tuesday, Sen. Russell Feingold (D-Wis.) attempted to press Roberts on memos he had written on the topic. "Senator, you keep referring to what I supported and what I wanted to do," Roberts replied. "I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships. I was not shaping administration policy."
Yesterday, Kennedy returned to the theme of voting rights, challenging Roberts about the last paragraph of a four-page memo in which Roberts had written that the broader "effects" standard "is not only constitutionally suspect, but also contrary to the most fundamental tenets of the legislative process on which the laws of this country are based." Kennedy asked whether Roberts believes that today.
After a lengthy series of questions, Roberts replied, "And I have no basis for viewing it as constitutionally suspect and I don't." He declined, however, to indicate his views on an extension of the voting rights law.
In a similar vein, the committee's ranking Democrat, Sen. Patrick J. Leahy (Vt.), questioned Roberts about a 1983 memo concerning the proper role of the Supreme Court, in which he had suggested that the court was overburdened and should consider fewer appeals of death penalty cases.
Leahy asked: "Are you saying that judges are just too busy to pay attention to death cases?" Roberts replied that he was not.
Yesterday afternoon, Sen. Richard J. Durbin (D-Ill.) cited a memo co-written by Roberts that had criticized the solicitor general's office for not filing a brief on behalf of Texas in a 1982 case in which the Supreme Court ruled that the state could not forbid illegal immigrants from attending public elementary schools.
Roberts replied that he had been "making the point that the position was inconsistent with the attorney general's litigation policy approach." When Durbin asked what he thought of that case today, Roberts said he had not looked at it in 23 years.
At one point, Sen. Herb Kohl (D-Wis.) asked in exasperation: "You have . . . suggested on numerous occasions that the things that you represented in writing or in an opinion back in the '80s and into the '90s . . . were in many cases the opinions of people for whom you worked, not necessarily your own. I assume, therefore, there are those opinions that you're prepared to disavow?"
Roberts replied: "My view in preparing all the memoranda that people have been talking about was as a staff lawyer. I was promoting the views of the people for whom I worked, and in some instances those are consistent with personal views, and in other instances they may not be.
"In most instances, no one cared terribly much what my personal views were. They were to advance the views of the administration for which I worked."