Civil rights groups cite concerns over Roberts

WASHINGTON -- Supreme Court nominee John G. Roberts Jr. has a history of working to roll back government affirmative action and voting rights programs enacted to help minorities overcome the effects of past discrimination, leading some civil rights groups to eye him warily.

As an aide in the Reagan administration, Roberts helped develop legal arguments to narrow the scope of the Voting Rights Act and curb court-ordered busing for school desegregation purposes. The Bush administration has released only heavily redacted versions of Roberts's memos from this era, and some civil rights groups are calling for the full versions to be made public.

''We have concerns about Judge John G. Roberts mainly because we have very little information on his judicial philosophy with respect to the important issues of affirmative action, voting rights, and civil rights," Marc Morial, president of the National Urban League, said this week. ''Because the next Supreme Court justice will make decisions affecting the lives of all Americans, it is crucial that they have a strong, positive, and demonstrated commitment to civil rights."

The blacked-out memos show that Roberts drafted op-ed pieces, talking points, and letters to the editor that went out under the name of Attorney General William French Smith to help promote the Reagan administration's efforts to limit the circumstances under which minorities could bring voting-rights claims.

Later, in private practice, Roberts represented clients opposed to government affirmative action programs. Four years ago, he authored a ''friend of the court" brief arguing that Congress had failed to prove that minority-owned construction firms were disadvantaged, so a law granting preferential treatment for minority-owned firms in highway contracts was unconstitutional.

''[T]he evidence presented to Congress over the years is plainly insufficient to support a nationwide remedial program applicable to nearly every racial minority in every type of construction business," Roberts wrote. ''There is no evidence of discrimination in every sector of the construction industry, in every geographic market, against every racial group covered by the [Disadvantaged Business Enterprises] program."

Theodore Shaw, president of the NAACP Legal Defense Fund, said yesterday that such statements -- even if contrary to his group's viewpoint -- are not necessarily enough to disqualify Roberts from a Supreme Court position. But, he said, Roberts must be forthcoming with documents and testimony to make clear his past role and current attitude toward civil rights.

''I don't think a lawyer who represents a party challenging affirmative action necessarily is ideologically opposed to affirmative action," Shaw said. ''That lawyer may or may not be. The challenge for us now is to look at Judge Roberts and ascertain whether he is a mission-driven ideologue or whether he is open-minded and fair."

Shaw, who also said that he has long known Roberts and found him to be a ''cordial and pleasant" man with a ''distinguished record," noted that in each of these instances, Roberts's work was on behalf of others -- either private clients or the Justice Department under Republican-run administrations.

Roberts has only a sparse record on civil rights after he became a judge on the US Court of Appeals for the District of Columbia Circuit. In a 2004 case, he looked skeptically at a claimed civil rights violation, writing a unanimous opinion throwing out a lawsuit by a 12-year-old girl who was arrested for eating a french fry on the Washington Metro system even though adults would only receive a citation for the same offense.

Roberts rejected the girl's claim that the Washington law was discriminatory, saying that treating the young differently from adults was allowable as long as there was a ''rational basis" for doing so -- the lowest and easiest legal standard to meet. In the french fry case, he wrote, the Washington law promoted ''the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts."

In an analysis of Roberts's record, the liberal group People for the American Way criticized his opinion in the french fry case as showing a cavalier attitude toward individual rights.

''Roberts appeared dismissive of the serious concerns raised by the use of police power in this case, stating that 'the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry,' " the report said. ''The police, however, did far more than make the child cry; they arrested her, handcuffed her, took her away in a police vehicle, and gave her an arrest record she must now live with."

Roberts's defenders argue that his civil rights record cannot be easily characterized because in several other cases, he worked to promote minority interests. Shannen Coffin, who served as deputy attorney general from 2002 to 2004, denounced ''the scare tactics going on right now, especially from civil rights groups, about how John Roberts is hostile to civil rights."

In 1991, for example, Roberts co-wrote the government's brief arguing that the state of Mississippi was continuing to foster a system of racially segregated public universities, violating the Civil Rights Act of 1964. And in 2000, he represented the state of Hawaii in defending a program that granted preferential treatment to native Hawaiians by allowing only that ethnic group to vote for trustees who would run the state's Office of Hawaiian Affairs.

''There are as many cases he worked on that could be considered 'pro civil rights' as those that would be considered sort of conservative positions," Coffin said.

Still, civil rights groups and Senate Democrats said yesterday that they are particularly interested in seeing the blacked-out sections of the memos Roberts wrote during the Voting Rights Act reauthorization debate in the early 1980s.

At the time, the Reagan administration was pushing Congress to rewrite the law so that minorities could win voting-rights lawsuits only if they could prove election rules intentionally discriminated against them. Civil rights groups attacked the move as ''racist" because proving intent in court is very difficult. They wanted to keep a standard that allowed minorities to challenge election rules that had the effect of discriminating against them, even if unintentional. Ultimately, the administration backed down.

Civil rights groups say the only way to determine Roberts's personal views on voting rights would be to release uncensored versions of the memos. But Coffin, the former deputy attorney general, said releasing the memos would discourage future lawyers in the Justice Department from airing their true feelings.

''If all of John Roberts's material is turned over today, what is the assistant solicitor general who is handling a controversial case today going to think about himself being burned 10 years from now when he's up for confirmation to something?" Coffin said.

But Rebecca Kirszner, a spokeswoman for the Senate minority leader, Harry Reid, Democrat of Nevada, said Democrats will push hard to get the Bush administration to release all of the memos Roberts wrote.

''Everything in Judge Roberts's professional record, including his service in the Justice Department, is relevant to this nomination," she said. ''The Supreme Court has the final word in protecting the rights of Americans. That's why it's so critically important that the Judiciary Committee be able to fully examine Judge Roberts's record."