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Roberts documents reveal a conservative

From the CNN Political Unit




Supreme Court
Justice and Rights
Judiciary (system of justice)

WASHINGTON (CNN) -- The National Archives on Tuesday released 15,000 pages of government documents pertaining to Supreme Court nominee John G. Roberts Jr. from his days as a young lawyer in the Reagan-era Justice Department.

The documents were written between September 1981 and November 1982, when Roberts was a special assistant to U.S. Attorney General William French Smith.

CNN reviewed many of the key documents, and highlights are listed below.

Advising O'Connor

Roberts helped Sandra Day O'Connor prepare for her 1981 Supreme Court confirmation hearings.

  • In a September 9, 1981, memo to O'Connor, Roberts argued that Supreme Court nominees should not answer questions on specific cases, citing the "appearance of impropriety":
  • "The proposition that the only way senators can ascertain a nominee's views is through questions on specific cases should be rejected. If nominees will lie concerning their philosophy, they will lie in response to specific questions as well.

    "The suggestion that a simple understanding that no promise is intended when a nominee answers a specific question will completely remove the disqualification problem is absurd. The appearance of impropriety remains."

  • In a September 17, 1981, memo to Kenneth Starr, then a counselor to the attorney general, Roberts described his role in preparing O'Connor:
  • "My involvement in the Judge O'Connor appointment process began my first day on the job, August 10. I started in on the process of preparing draft answers to questions that were likely to be asked during the confirmation hearings.

    "The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the Court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments."

  • Roberts drafted possible questions and suggested responses for O'Connor on issues such as judicial activism and immigration policy.
  • Roberts indicated he briefed O'Connor on past confirmation hearing questions and testimony (including what he called "particularly good answers").
  • Roberts helped compile profiles of Senate Judiciary Committee members, including identifying their likely areas of questioning, "pet projects and concerns."
  • Roberts indicated he held mock confirmation hearings with O'Connor, posing questions to her from past confirmation hearings.
  • School prayer

    Roberts drafted an argument at the request of the attorney general on limiting the power of federal courts to rule on school prayer cases, according to a April 13, 1982, memo:

    "We have concluded that Congress has the Constitutional power to divest the lower federal courts of jurisdiction over school prayer cases."

    Affirmative action

    Roberts had harsh words for a positive report on affirmative action by Arthur Flemming, the outgoing chairman of the U.S. Commission on Civil Rights, according to a December 22, 1981, memo to the attorney general:

    "The logic of the report is perfectly circular: the evidence of structural discrimination consists of disparate results, so it is only cured when 'correct' results are achieved through affirmative action quotas. Perhaps the clearest example of the self-serving nature of the report is found in the dismissal of failures in affirmative action as caused not by inherent flaws but 'sabotage.'

    "There is no recognition of the obvious reason for failure: the affirmative action program required the recruiting of inadequately prepared candidates.

    "I have drafted an innocuous reply to Chairman Flemming. The report is attached, although I do not recommend reading it."

    Habeas Corpus/due process

    In a November 12, 1981, memo, Roberts argued for restrictions of habeas corpus protections, which allows prisoners to petition a court that their case be reviewed and provides for a federal check against possible abuses by state officials:

    "The current availability of federal habeas corpus, particularly for state prisoners, goes far to making a mockery of the entire criminal justice system.

    "It is almost inconceivable that a rational legal system, even one with full concern for the Constitutional rights of criminal defendants, would be designed to approximate the present system arrived at through time by an uncoordinated process of judicial and legislation accretions."

    Judicial activism/sign-language case

    In a July 7, 1982, memo to the attorney general, Roberts criticized a lower court ruling requiring that a school board provide a free sign-language interpreter for a hearing-impaired student who had already been provided with tutors and a hearing aid:

    "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, imposing a requirement of an interpreter."

    Limiting Supreme Court's reach

    Roberts argued that Congress had the power to limit the Supreme Court's appellate jurisdiction on controversial issues, like abortion, busing and school prayer -- but advised that doing so would be "bad policy," according to recently released memos.

    A document dated April 12, 1982 shows that Roberts disagreed with the view of then-Assistant Attorney General Ted Olson that Republican legislation in Congress to limit such jurisdiction faced constitutional problems.

    The Justice Department later sent a letter to the Senate and House Judiciary committees, concluding that Congress not curtail the high court's jurisdiction, the documents show.

    Three years later, in a memo to his boss in the White House counsel's office, Fred Fielding, Roberts would still argue that the Senate bill to stop the Supreme Court from hearing challenges to voluntary school prayer laws was constitutional.

    But he also advised that the Justice Department not reverse course and to "let sleeping dogs (an apt reference, given my view of the opinion) lie," he wrote.

    CNN obtained the Fielding memo from a source with access to Roberts' documents.

    The debate over the Supreme Court's jurisdiction centers on Article III, Section 2 of the U.S. Constitution.

    The language says that the Supreme Court "shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

    In the 1982 memo, Roberts wrote "NO!" in the margin next to one of Olson's arguments. He also offered a handwritten retort to Olson's contention that the Reagan administration would be seen as "courageous" by opposing such limits.

    "Real courage would be to read the Constitution as it should be read and not kowtow to the Tribes, Lewises and Brinks!" Roberts wrote.

    ("Tribes" likely refers to liberal Harvard law professor Laurence Tribe. The Washington Post speculates that "Lewises" and "Brinks" refer to New York Times columnist Anthony Lewis and then-American Bar Association President David Brink, who opposed the legislation.)

    Olson had argued that the legislation was unnecessary because the Supreme Court already had a majority of Republican-appointed justices.

    In response to this argument, Roberts underlined the names of Justices Blackmun and Stevens, two Republican appointees known for their liberal votes.

    He also drew an arrow connecting Blackmun's name to the word "abortion." Blackmun was the author of the Roe v. Wade decision, which said that women had a constitutional right to an abortion.

    Sex discrimination (Title IX)

    Roberts advocated a narrow reading of federal Title IX laws, which bar sex discrimination in educational institutions that receive federal funding.

    In an August 31, 1982, memo to the attorney general, he argued that a university's athletics program is not subject to Title IX anti-discrimination laws if that specific program does not receive federal funds, regardless of whether the university itself receives federal funds:

    "Under Title IX, federal investigators cannot rummage willy-nilly through institutions, but can go only as far as the federal funds can go."

    "The women's groups pressuring us to appeal would have regulatory agencies usurp power denied them by Congress to achieve an anti-discrimination goal. Under your leadership the Department is committed to opposing such legislation by the bureaucracy and that commitment should continue in this case."

    Busing/school desegregation

    Roberts drafted a letter on April 6, 1982, in the Attorney General's name on the constitutionality of anti-busing proposals. The letter supported proposed legislation that would limit the power of federal courts to use busing as a means of desegregating schools:

    "We do not believe busing is necessary to provide the equal educational opportunity mandated by Brown" (Brown v. Board of Education, the Supreme Court decision that overturned the "separate but equal" doctrine for public facilities).

    "The bill would protect all students from transportation to schools distant from their homes, irrespective of their race."

    CNN's Dana Bash, Stephen Bach, David de Sola, Kenneth Schultz and Robert Yoon contributed to this report.

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