- The Washington Times - Monday, August 1, 2005

Considering previous Republican presidential debacles involving Supreme Court nominations (e.g., Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens, David Souter, et al.), we must admit that we would have been happy if John Roberts had been a founder and longstanding member of the Federalist Society. Beyond his 1980-81 stint as a Supreme Court clerk for then-Associate Justice William Rehnquist, moreover, we further stipulate that we would have derived additional satisfaction if Mr. Roberts had joined the Rehnquist Club at Harvard Law School.

Grateful for evidence of Mr. Roberts’ strong conservative inclinations from any source, we were especially pleased last week to read two dispatches by David Rosenbaum in the New York Times. With help from a colleague sifting through papers at the Reagan Library in California, Mr. Rosenbaum spent days in Maryland and Washington culling through the thousands and thousands of pages of Reagan administration documents released by the National Archives.

Following his Supreme Court clerkship, Mr. Roberts worked as a special assistant to Attorney General William French Smith from August 1981 to November 1982, after which he moved to the White House counsel’s office until 1986. During that period, one of the nation’s most incendiary issues involved court-ordered school busing to achieve desegregation. Regarding a congressional bill limiting the power of courts to compel busing, Mr. Roberts advised Mr. Smith in one memo that the restriction would not have “an invidious discriminatory purpose” because, he argued, “the bill would protect all students from transportation to schools distant from their homes, irrespective of race.” His memo directly concluded: “We do not believe busing is necessary” to achieve equal educational opportunity. In a 1985 memo to White House Counsel Fred Fielding, he challenged the view of Assistant Attorney General Theodore Olson, who had been arguing that Congress’ hands were tied by a Supreme Court ruling declaring busing to be constitutionally required in some cases. “It strikes me as more than passing strange for us to tell Congress it cannot pass a law preventing courts from ordering busing when our own Justice Department invariably urges this policy on the courts,” Mr. Roberts wrote in a memo to Mr. Fielding cited by Mr. Rosenbaum.

Repeatedly advocating judicial restraint, Mr. Roberts routinely wrote memos calling for the enhancement of presidential power and endorsing the right of Congress to strip the courts of authority over busing, school prayer and other issues. Mr. Rosenbaum cited a November 1981 letter to appellate Judge Henry Friendly, for whom Mr. Roberts also had clerked, in which Mr. Roberts said that he and his colleagues were determined to “halt unwarranted interference” by the courts in the proper affairs of Congress and the executive branch. In another example of his support for judicial restraint, an October 1981 Roberts memo to Kenneth Starr, who was then counselor to the attorney general, objected to a federal judge’s “propensity to reach out and decide complicated questions of law which he admits need not be decided.”

Mr. Roberts strongly criticized a 1981 report by the U.S. Commission on Civil Rights that defended affirmative action. Perhaps drawing from his experience at Harvard, his memo argued that affirmative action programs failed because they “required the recruiting of inadequately prepared candidates.” An August 1982 memo to the attorney general argued that Title IX — a federal law prohibiting sex discrimination in colleges and universities receiving federal aid — did not apply to the entire university, but only to those programs that received federal aid.

In a memo expressing disagreement with a Supreme Court decision denying states the right to establish residency requirements for welfare recipients, Mr. Roberts complained about the court’s tendency to find rights in the Constitution that were not explicitly contained therein. “It’s that very attitude which we are trying to resist,” he wrote.

Mr. Roberts began a 1981 memo about “possible reforms of the availability of federal habeas corpus” by arguing that the current situation, “particularly for state prisoners, goes far to making a mockery of the entire criminal justice system.” He later added that “it seems bizarre for a constitutional provision to be interpreted to preserve something — federal habeas corpus — which did not yet exist when the provision was enacted.” Mr. Roberts may have offered a definitive glimpse into how he believes the Constitution should be interpreted when he observed in one memo that “real courage would be to read the Constitution as it should be read.”

Indeed, Mr. Roberts may have been referring to the court’s misguided inference of a constitutional right to privacy, which comprised the underlying principle in the Roe v. Wade abortion decision, when he appeared at an American Enterprise Institute forum on judicial power in October 1981. There, Mr. Rosenbaum reported, Mr. Roberts remarked that most of the forum’s participants “recognized a serious problem in the current exercise of judicial power” as demonstrated by “what is broadly perceived to be the unprincipled jurisprudence of Roe v. Wade.”

All of these examples were drawn from Mr. Roberts’ tenure between 1981 and 1986 as a young staffer in the Reagan administration. We recognize that those staffers were encouraged to consciously push the philosophical envelope while being constantly on guard against latent “pragmatism.” We do not assert that the statements culled by Mr. Rosenbaum from memos written 20 to 25 years ago are dispositive today. But we are deeply encouraged by those views and grateful to Mr. Rosenbaum for finding and circulating them.

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