Published January 13, 2015
Supreme Court nominee John Roberts (search) disparaged state efforts to combat discrimination against women in Reagan-era documents made public Thursday — and wondered whether "encouraging homemakers to become lawyers contributes to the common good."
As a young White House lawyer, Roberts also expressed support for a national ID card in 1983, saying it would help counter the "real threat to our social fabric posed by uncontrolled immigration."
In words that may resurface — however humorously — at his confirmation hearing, he criticized a crime-fighting proposal by Sen. Arlen Specter (search) as "the epitome of the throw money at the problem" approach.
Specter, R-Pa., then a first-term senator, is now chairman of the Judiciary Committee and will preside at Roberts' hearings, scheduled to begin Sept. 6.
The documents, released simultaneously in Washington and at the Reagan Library in California, show Roberts held a robust view of presidential powers under the Constitution. "I am institutionally disposed against adopting a limited reading of a statute conferring power on the president," he wrote in 1985.
The materials made public completed the disclosure of more than 50,000 pages that cover Roberts' tenure as a lawyer in the White House counsel's office from 1982-86.
Nearly 2,000 more pages from the same period have been withheld on national security or privacy grounds.
Additionally, over the persistent protests of Senate Democrats, the White House has refused to make available any of the records covering Roberts' later tenure as principal deputy solicitor general during the administration of President George H.W. Bush.
Taken as a whole, the material released Thursday reinforced the well-established image of Roberts as a young lawyer whose views on abortion, affirmative action, school prayer and more were in harmony with the conservative president he served. In one memo, he referred favorably to effort to "defund the left."
Democrats say they will question Roberts closely on those subjects and others at his hearings, and they scoured the newly disclosed documents. And despite the apparently long odds against them, civil rights and women's groups are beginning to mount an attempt to defeat his nomination.
Emily's List, which works to elect female candidates, drew attention to a recent speech by Sen. Barbara Boxer (search), D-Calif., in which Boxer raised the possibility of a filibuster if Roberts doesn't elaborate on his views on abortion and privacy rights at his hearings.
"I have the ultimate step," Boxer said. "I can use all the parliamentary rules I have as a senator to stand up and fight for you."
The documents released Thursday recalled the battles of the Reagan era and underscored the breadth of the issues that crossed the desk of Roberts, then a young lawyer in the White House.
He advised senior officials not to try and circumvent the will of Congress when it established a nationwide 55 mph speed limit, for example.
At one point, Roberts drafted a graceful letter to the actor James Stewart for Reagan's signature. "I would normally be delighted to serve on any group chaired by you," it began, then went on to explain why White House lawyers didn't want the president to join a school advisory council.
On a more weighty issue, he struggled to define the line that Reagan and other officials should not cross in encouraging private help to the forces opposing the leftist Sandinista government of Nicaragua.
A memo dated Jan. 21, 1986, said there was no legal problem with Reagan's holding a White House briefing for two groups trying to raise funds. Then, a month later, Roberts warned against getting too close to such groups, toning down letters of commendation drafted for Reagan's signature.
On immigration, he wrote Fred Fielding, White House counsel at the time, in October 1983 that he did not share his opposition to a national ID card. Separately, anticipating a presidential interview with Spanish Today, he wrote. "I think this audience would be pleased that we are trying to grant legal status to their illegal amigos."
Roberts reviewed a report that summarized state efforts to combat discrimination against women. "Many of the reported proposals and efforts are themselves highly objectionable," he wrote to Fielding.
As an example, he said a California program "points to passage of a law requiring the order of layoffs to reflect affirmative action programs and not merely seniority" — a position at odds with administration policy.
He referred to a "staggeringly pernicious law codifying the anti-capitalist notion of `comparable worth,' (as opposed to market value) pay scales." Advocates of comparable worth argued that women were victims of discrimination because they were paid less than men working in other jobs that the state had decided were worth the same.
In a third case, Roberts said a Florida measure "cites a (presumably unconstitutional) proposal to charge women less tuition at state schools, because they have less earning potential."
In a memo dated Sept. 26, 1983, Roberts cited the administration's objections to a proposed Equal Rights Amendment to the Constitution.
"Any amendment would ... override the prerogatives of the states and vest the federal judiciary with broader powers in this area, two of the central objections to the ERA," Roberts wrote.
His remark about homemakers and lawyers seemed almost a throwaway line in a one-page memo about the Clairol Rising Star Awards and Scholarship Program. The program was designed to honor women who made changes in their lives after age 30 and had made contributions in their new fields.
An administration official nominated an aide who had been a teacher but then became a lawyer. Roberts signed off on the nomination, then wrote: "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide."
More than a decade later, Roberts married an attorney.