Roberts Writings Show Sharp Political Sense

Published July 23, 2005

| Associated Press

John Roberts was not afraid to jab an elbow on policy or dispense opinion with a dash of sarcasm when he was a young lawyer in the Reagan White House.

President Bush's Supreme Court nominee was a stickler for legal nuance who used a finely tuned political radar to steer officials away from entanglements on Capitol Hill (search), where Democrats then ruled.

Roberts' writings stored at the Ronald Reagan Presidential Library (search) give a sense of a partisan eager to defend the president and keep lawmakers and bureaucrats in line.

For someone who has become known in both parties for a self-deprecating wit, Roberts could be blunt on paper, even dismissive.

Roberts, 50, served in the White House counsel's office from 1982 to 1986. The files show that his tasks included scrutinizing proposed legislation, assessing the impact of court rulings and reviewing speeches.

Roberts' political instincts took charge when he alerted White House counsel Fred Fielding that an administration position in a racially sensitive Supreme Court case could rankle a political ally, a Mississippi congressman named Trent Lott (search).

In a case involving alleged discrimination and a church-run school, Roberts wrote in a memo dated Aug. 2, 1984, "There should be little press interest ... since we are on the side of the black parents at this point."

Government officials had assured Lott they would not prevent the Mississippi church from having its day in court. "Just not the Supreme Court," Lott should be told if he objects, Roberts, then 29, wrote.

In a memo from March 1984, Roberts warned an official at the White House's Office of Management and Budget to avoid references to a touchy issue during upcoming immigration testimony.

The office should not cite the denial of visas to the widow of former Chilean President Salvador Allende and Nicaragua Interior Minister Tomas Borge, according to the memo. At the time, the Reagan administration was being criticized for denying entry to leftist foreign officials on ideological grounds.

"Those denials were, and continue to be, particularly controversial and there is no need to mention them," Roberts wrote.

The hundreds of pages of memos, reports and other records provide only a glimpse of Roberts' tenure at the White House.

Many files have yet to be processed by archivists and, as with papers of other administration officials, are unavailable to the public. On Friday, Sen. John Kerry, D-Mass., urged the White House to release Roberts' documents "in their entirety" from his time in the administrations of Reagan and the first President Bush. Roberts was principal deputy solicitor general from 1989-93 for the current president's father.

In his Reagan years, Roberts weighed in on matters such as busing, immigration rights, fair housing law and war powers.

In an August 1984 memo, he wrote with lawyerly precision and caution about proposed presidential remarks on fair housing.

"The first sentence refers to the right of fair housing as a 'fundamental' right. I would change this to 'basic' right, since 'fundamental right' is a legal term of art in constitutional analysis and the right to fair housing in not such a 'fundamental right,"' Roberts wrote.

Directed to analyze a bill that would have blocked lower federal courts from ordering busing to integrate public schools, Roberts bucked an administration legal heavyweight — Theodore B. Olson, an assistant attorney general.

Olson's was among the names speculated about recently as possible replacements for retiring Supreme Court Justice Sandra Day O'Connor — until Bush settled on Roberts last week
Roberts challenged Olson's conclusion that Congress could not outlaw busing for the purpose of reaching a racial mix in schools.

"Olson read the early busing decisions as holding that busing may in some circumstances be constitutionally required, and accordingly concludes that Congress may not flatly prohibit busing," Roberts writes. "I do not agree."

For someone widely known as a likable Midwesterner, his writings sometimes display a snarky wit.

In August 1983, he reviewed what he called a "snide letter" to Reagan from a University of Georgia professor who alleged that a government agency was compiling a blacklist and then suggested the government might investigate him for complaining.

In a memo to Fielding, Roberts added parenthetically, "Once you let the word out there's a blacklist, everybody wants to get on."

When Rep. Elliott Levitas, D-Ga., wrote Reagan to suggest a "Conference on Power Sharing" after a broad 1983 Supreme Court ruling, Roberts was dismissive.

"There already has, of course, been a 'Conference on Power Sharing,"' Roberts wrote — then alluded to the Constitutional Convention in Philadelphia.

Roberts' legal advice could be pointed.

In another August 1983 memo to Fielding, Roberts reviewed a recent speech by Stuart Statler, a member of the Consumer Products Safety Commission, on a Supreme Court ruling on the division of government powers.

In the speech, Roberts wrote, Statler had suggested Congress strip from the executive branch the Justice Department's authority to represent federal agencies in court.

"There is so much wrong with so much of what Statler suggests that it is probably best simply to acknowledge receipt of his speech," Roberts told Fielding, "and tell him you look forward to reading it."

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