Roberts showed way to shift the debate

WASHINGTON -- As a young aide in the Reagan administration's Justice Department, John G. Roberts Jr., now a Supreme Court nominee, advised his conservative colleagues to cloak their views behind broadly acceptable terms such as ''judicial restraint," according to memos released yesterday.

In 1981, for example, when the Justice Department was prepping Supreme Court nominee Sandra Day O'Connor for the same Senate confirmation questioning that Roberts will soon face, Roberts counseled her to avoid giving direct answers on legal issues facing the court.

''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 wrote in one memo describing the mock questioning sessions he held with her.

In a February 1982 memo, Roberts urged Attorney General William French Smith to adopt a similar tactic in a speech before ''new right" conservative groups. The groups had criticized Smith's record for allegedly failing to appoint top officials and federal judges who were ''ideologically committed to the President's policies . . . with particular emphasis on the social agenda."

Although such attacks were sometimes ''completely unfounded," Roberts wrote, Smith should not defend the conservative credentials of Reagan's appointees because ''such an approach would open us up to criticism from the left and even the center."

Instead, Roberts wrote, Smith should focus on how Reagan's judicial nominees shared a philosophy of judicial restraint.

''I do not think we should respond with a 'yes they are [conservative]'; rather we should shift the debate," Roberts wrote. ''Judges do not implement policy in the true conservative view of things, and the hot issues of today will not be those of ten or fifteen years hence, when our judges will be confronted with new social issues. Our appointments process therefore looks beyond a laundry list of personal views to ascertain if the candidate has a proper appreciation of the judicial role."

Roberts's views on the need to avoid the sharper edges of debate runs through many of the 15,000 documents from his files as an assistant to Smith in 1981 and 1982. The files were made public at the National Archives yesterday by the Bush administration.

The White House has denied requests from Senate Democrats and interest groups for files from another period in Roberts's career, when he served as deputy solicitor general in the George H. W. Bush administration. The White House maintains that sharing such internal memos would discourage future lawyers from freely debating legal issues.

While Senate Democrats denounced the decision to withhold the later files yesterday, reporters and Senate aides began poring through the boxes of the earlier documents, looking for clues about Roberts's views on controversial social issues.

The memos showed that Roberts was skeptical of affirmative action, while shedding little light on his views of abortion rights. One memo suggested that he supported proposals in Congress to strip the federal courts of jurisdiction to hear cases on matters ranging from school busing to abortion.

In the 1982 memo, a colleague laid out arguments why Reagan should oppose efforts to limit courts' power to decide cases on busing and abortion, saying such a stance would be seen as ''courageously" defending the Constitution against members of his own party.

Roberts's notations on the memo were derisive: ''Real courage would be to read the Constitution as it should be read and not kowtow to the [Laurence] Tribes" or other liberal academics.

On matters of civil rights and affirmative action, there are several memos in which Roberts privately denounced a liberal program or position, but urged his bosses to try to avoid confronting the issue. In September 1982, for example, he wrote a memo preparing Smith for a meeting with Coretta Scott King, who wanted Smith to renew a $250,000 grant for the Martin Luther King Jr. Center.

In reality, Roberts wrote, ''the only reason for the grant was the political ties" between Mrs. King and the former administrator of the grant program, and the money had been squandered by poor management. But in Smith's meeting with King, Roberts advised, the attorney general should praise the program's goals, express ''pleasure" that the federal government could be of assistance, but explain that no further funds were available.

And in a 1981 memo, Roberts wrote a deeply skeptical review of a report outlining the need for affirmative action. Roberts wrote that the report was the ''swan song" of the outgoing Carter-era chairman of the US Commission on Civil Rights.

''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," Roberts wrote, later adding that a certain minority recruitment had failed because ''the affirmative action program required the recruiting of inadequately prepared candidates."

Nevertheless, Roberts wrote to Smith, there was no reason to be candid about that view: ''I have drafted an innocuous reply to [the civil rights commission chairman]. The report is attached, although I do not recommend reading it."

Another document shows, however, that Roberts could be aggressive in defending his political views and reputation internally. A dispute arose in September 1982 about the Justice Department's position in the renewal of the 1965 Voting Rights Act several months earlier.

Smith's team, which included Roberts, had fought hard to convince Congress that the new version of the law should only allow voting-rights lawsuits if minorities could prove that local elections officials intended to discriminate against them.

Civil rights groups contended that intentional discrimination would be nearly impossible to prove in court, and pushed instead to allow lawsuits whenever voting rules had the effect of discriminating, even if it was unintentional.

For months, Roberts and his colleagues pushed Smith to argue that the looser standard would lead to racial quotas in election results. Eventually, a compromise settled the issue.

A few months later, Roberts read that Housing Secretary Samuel R. Pierce, the highest-ranking black official in the Reagan administration, had attacked the Justice Department's position.

Pierce had told a group of black leaders that he'd embraced the ''watered-down" compromise because he felt there was an ''excellent chance" that Reagan was about to choose the Justice Department plan, which would have gutted the ''very heart of the act."

Roberts was furious.

He penned a note to Kenneth Starr, then counsel to the attorney general, asking permission to fire back: ''Is there anything we can do about Pierce's outrageous statements? I'd be delighted to draft a letter from the AG to Pierce, or a press release from the AG commenting on housing policies."

A few days later, the file shows, Smith sent a letter to Pierce describing himself as ''at a loss to understand either the factual basis for your statement or what possible reason you could have had for it."