Dems Question Roberts' Views on Activism

WASHINGTON – The Senate Judiciary Committee on Thursday sent Supreme Court nominee John Roberts (search) a questionnaire that asks him to describe his views on judicial activism.

Click in the box to the right to watch a report by FOX News' Megyn Kendall.

But some of that information is already coming to light in documents recently released concerning Roberts' earlier work in government service, including his time at the attorney general's office in the Justice Department in 1981.

Twenty-four years before he was nominated to the nation's highest court, Roberts asked to work on sweeping reforms that were already underway.

Then-Attorney General William French Smith (search) recruited Roberts to help Smith in his determination to combat what he viewed as "judicial activism," or policy-making from the bench, on issues like abortion and school prayer.

Roberts responded faithfully. In one memo, he criticized two federal court decisions that overruled a school board on how best to accommodate a hearing-impaired child.

"The lower courts, in an exercise of judicial activism, used the vague statutory language to overrule the board and substitute their own judgment of appropriate educational policy," Roberts wrote in a July 7, 1982, memo to Smith.

On issues from sex discrimination to prisoners' rights, Roberts argued for strict legal interpretations consistent with the administration's view that courts were never meant to "fashion policy."

For example, in a case alleging sex discrimination at the University of Richmond in Virginia, Roberts urged the attorney general not to appeal a lower court ruling in favor of the university.

The dispute was whether under Title IX, which bans sex discrimination at federally funded schools, the Department of Education could investigate all school athletic programs or just those programs actually receiving federal funds.

Roberts took the more restrictive view.

"Under Title IX federal investigators cannot rummage wily-nily [sic] through institutions, but can only go as far as the federal funds go," he wrote in the Aug. 31, 1982, memo to Smith.

On prisoners' rights, particularly federal "habeas corpus" rights that allow defendants to file multiple appeals in federal court once their state court appeals are exhausted, Roberts argued for change.

"The current availability of federal habeas corpus, particularly for state prisoners, goes far to making a mockery of the entire criminal justice system," he wrote in a Nov. 21, 1981, memo on possible reforms.

Roberts has written that it was an "exciting time" to be at the Justice Department when "so much that had been taken for granted" in the past was being "seriously reconsidered."

The documents suggest that Roberts, then just in his mid-20s, may have had a small hand in shaping those reforms.

The papers that show Roberts' prep work and conclusions still may not be enough for some Democratic lawmakers. On Thursday, Sen. Ted Kennedy (search) of Massachusetts announced that Democrats on the Senate Judiciary Committee were sending a letter to Attorney General Alberto Gonzales requesting documents related to approximately 20 cases Roberts worked on while in the solicitor general's office during the term of President George H.W. Bush.

Kennedy said the "limited request" is related to cases that have a "constitutional context. That's basically the framework which out of 300 where the solicitor general takes action. This is very limited and appropriate."

The American Bar Association is also reviewing whether the favorable recommendation it gave Roberts for his federal appellate court judgeship is good for the Supreme Court nomination as well. The ABA scrutiny is based on an evaluation of the nominee's integrity, professional competence and judicial temperament and is based on a review of opinions and legal briefs as well as interviews with judges, lawyers who argued before Roberts, community leaders, law professors and the nominee.

FOX News' Molly Hooper and The Associated Press contributed to this report.