Roberts Criticized O'Connor Promotion

WASHINGTON – As a lawyer in the Reagan White House, John Roberts (search) scoffed at the notion of elevating Supreme Court Justice Sandra Day O'Connor to chief justice as a way to close a political gender gap, calling it a "crass political consideration."

On another topic, Roberts, who was nominated as a justice by President Bush (search) last month, advised the White House to strike language from a description of a housing bill that referred to the "fundamental right to be free from discrimination." He said that "there, of course, is no such right."

More than 38,000 pages of documents released this week by the National Archives (search) offer new details that portray Roberts as embracing the conservative philosophy of the Reagan administration.

Some Democrats and liberal interest groups called anew on Friday for the release of more documents that might shed light on Roberts' views. His confirmation hearings are to begin Sept. 6.

"Many of the documents made it clear that as a junior official in the Reagan administration, he was part of an intense effort to impede progress on numerous key issues, such as progress on equal rights for women," said Sen. Edward Kennedy, D-Mass., a member of the Judiciary Committee that will consider Roberts' nomination.

Added Sen. Frank Lautenberg, D-N.J.: "The question before the Senate is whether this is the person who should replace the first female justice of the Supreme Court."

In an Aug. 2, 1984, memo, Roberts responded to a former member of the Federal Reserve's Board of Governors, John E. Sheehan, who had written President Reagan to suggest an election-year strategy that Roberts described as closing the "so-called 'gender gap.'" Reagan was more popular among men than women.

Sheehan's plan called for then-Chief Justice Warren Burger, who was nearing retirement, to step down soon after the 1984 Republican convention and be appointed as an ambassador.

"The president would elevate Justice O'Connor two weeks later, and then name yet another woman to succeed O'Connor two weeks after that. Presto! The gender gap vanishes," Roberts wrote.

"Any appointments the president may make to the Supreme Court will not be based on such crass political considerations," Roberts advised in a memo to his boss, Fred Fielding.

In recent weeks, O'Connor — who has been a swing vote on the Supreme Court on issues including Title IX gender discrimination and affirmative action — has praised Roberts' selection as her successor, but has expressed the one regret that he isn't a woman.

Burger eventually retired in 1986 and was replaced as chief by then-Associate Justice William H. Rehnquist, whom Roberts had clerked for in 1980. Antonin Scalia was then appointed to fill Rehnquist's seat.

The memo and other materials made public Thursday by the Ronald Reagan Presidential Library in Simi Valley, Calif., and the National Archives 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.

Representatives from seven liberal-leaning organizations Friday called on the White House to put out those documents, saying that what's been released so far has raised questions.

Memoranda from his service as deputy solicitor general would "potentially say a great deal about Judge Roberts' views on important areas of the law" such as civil rights, abortion and the environment, said Nan Aron, president of the Alliance for Justice.

Among the documents that have been released, in a June 14, 1983, memo, Roberts showed skepticism toward an expansive view of "fundamental rights" under the Constitution when commenting on a housing discrimination bill.

"Fundamental rights" is a legal concept that has been used to justify a broad array of civil rights under the Constitution, including a right to privacy.

Noting that the proposed administration bill would justify penalties by pointing to a "fundamental right to be free from discrimination," Roberts advised that the language be deleted.

"There is of course no such right; at the very least 'illegal' should modify 'discrimination,'" Roberts wrote. "More significantly, 'fundamental right' is a legal term of art triggering strict judicial scrutiny."

Other memos paint a picture of a politically savvy attorney who tried to restrain inflammatory conservative rhetoric by the administration.

In a June 20, 1984, memo, Roberts commented on a proposed presidential anticrime speech that touted Reagan's program to appoint judges who would respect the rights of victims as well as the accused.

Roberts advised against Reagan making a pledge to bring "sanity back to the courtroom."

"This strikes me as a bit strong; I would delete," he wrote.

Roberts indicated in a March 25, 1985, memo why he initially didn't join the American Bar Association. He is now a member and recently received its "well-qualified" rating to become a justice.

The ABA wanted Reagan to proclaim on Law Day that all citizens should join him and "the American Bar Association, the sponsor of Law Day."

Roberts cited several problems with that, adding: "Finally, those of us who have declined to join the ABA because of its hostility to the administration might feel betrayed."