Bloomberg News - A Closer Look at Nominee John Roberts and the Issues

August 30, 2005
by James Rowley in Washington

(Bloomberg) -- As a young government lawyer, Supreme Court nominee John G. Roberts Jr. proposed reining in the U.S. Equal Employment Opportunity Commission because its civil rights positions were "totally inconsistent'' with President Ronald W. Reagan's policies, a newly released memo says.

In a June 16, 1982, memo to his boss, Attorney General William French Smith, Roberts complained that the agency's legal strategy on employment discrimination was at odds with that of the Justice Department's civil rights division.

Roberts said the EEOC had urged the Supreme Court to find that a company's seniority system was discriminatory because it had the effect of promoting fewer minorities even if there was no evidence the company intended that result.

"EEOC presented an argument that would have expanded the effects test in employment cases -- despite the clear philosophical opposition to the effects test'' by the Justice Department ''most clearly articulated in the voting rights area,'' Roberts wrote in the memo released today by the National Archives.

Roberts said in another case the EEOC argued that it wasn't bound by state court findings that there was no discrimination "despite the clear thrust by the department to enhance and respect state courts and encourage finality in litigation.''

The memos are among more than 50,000 pages of documents that the National Archives and the Reagan Presidential Library in Simi Valley, California, have released from Roberts's days as a special assistant to Smith and later as an associate White House counsel.

Roberts's Views

Senators are looking at the memos for clues to Roberts's views on a range of issues, including affirmative action, abortion, criminal law and the power of the presidency. Roberts, 50, a federal appeals court judge nominated by President George W. Bush to succeed Justice Sandra Day O'Connor, probably will be questioned about his writings at Senate confirmation hearings that begin Sept. 6.

Vermont Senator Patrick Leahy, the top Democrat on the Senate Judiciary Committee, said he wants to ask Roberts about memos that took ''what I consider to be positions that were on the extreme in a conservative administration.''

Leahy and Roberts "talked just generally about some of the memos'' today during an hour-long meeting, the senator told reporters afterward.

The liberal advocacy group People for the American Way last week announced its opposition to Roberts's confirmation, citing his memos on civil rights and other topics. The Alliance for Justice, another Washington-based liberal advocacy group, said it will announce its opposition tomorrow.

Church-State Separation

Americans United for Separation of Church and State, meanwhile, said in a report that Roberts wants to erode the traditional separation of government and religion.

"He has been a faithful soldier in the far right's campaign to roll back the church-state safeguards,'' the Rev. Barry W. Lynn, the Washington-based group's executive director, said in a statement.

Jay Sekulow, chief counsel for the American Center for Law and Justice, a Washington-based group supporting the nominee, said Roberts "understands the importance of protecting the religious rights of Americans while ensuring that the government does not exhibit hostility toward those who hold religious beliefs.''

The 1982 memo about the EEOC included a handwritten notation by Smith that he "agreed'' with Roberts's recommendation that the employment commission and the solicitor general's office, which represents the government before the Supreme Court, should coordinate legal strategy with the Justice Department's civil rights division.

Employment Case

The solicitor general's office represented the EEOC in both cases Roberts cited. "Fortunately, the solicitor general's office and the EEOC lost in these cases, each time by a vote of 5-4,'' Roberts wrote.

In the employment case Roberts wrote about, the high court ruled that American Tobacco Co.'s seniority system for promotion wasn't covered by the 1964 Civil Rights Act under a provision that exempted seniority systems.

The justices interpreted that provision as applying to seniority systems, such as American Tobacco's, that were adopted after the law's enactment, not just those already in place when Congress passed the landmark legislation.

"It is clear that Judge Roberts was highlighting a fact of an inconsistency between the agency's position and stated administration policy,'' said Dana Perino, a White House spokeswoman.

In another memo released today, Roberts counseled O'Connor as she prepared for Senate confirmation hearings on her Supreme Court nomination to avoid answering questions about actual cases and stick to the ''generally established'' practice of only discussing her judicial philosophy.

'Torture' Memo

"The proposition that the only way senators can ascertain a nominee's views is through questions on specific cases should be rejected,'' he wrote on Sept. 9, 1981. "If nominees will lie concerning their philosophy, they will lie in response to specific questions as well.''

In their meeting, Leahy said he gave Roberts a copy of an Aug. 1, 2002, Justice Department memo, since retracted by the agency, that said certain physical and mental pain inflicted on suspected terrorists in detention might not "rise to the level of torture.''

Leahy said he gave Roberts the memo because he expects senators to ask him "what it says to the effect the president is above the law.''

Leahy said he also warned Roberts to expect questions from other Democrats about why he didn't disqualify himself from ruling this year on a legal challenge to military tribunals Bush convened to try suspected terrorists held in detention.

Terrorism Case Argument

Roberts heard arguments six days after he first met with U.S. Attorney General Alberto Gonzales about a possible Supreme Court vacancy. Bush nominated Roberts on July 19, four days after Roberts joined a three-judge panel in upholding the president's authority to convene the tribunals.

"Is it significant? Yes. That's why I raised it with him,'' Leahy said.

Leahy also said he wanted reassurance from Roberts that he would be "independent of the executive branch, including the executive branch that appointed him.''