Roberts Documents Released

Supreme Court nominee John Roberts as a young government lawyer pushed for a limited Supreme Court role on hot-button issues in the 1980s such as death penalty appeals, newly released documents show.

Senate Democrats quickly pressed for the release of more material that would shed light on the high court nominee's views.

Roberts was 26 when he served in the Justice Department as a special assistant to Attorney General William French Smith during the Reagan administration. The 1981-82 files released Tuesday by the National Archives paint a picture of a politically savvy attorney who showed some impatience with "judicial activism."

One issue Roberts focused on was appeals by prisoners, who in the 1980s had several avenues of challenging their sentences in both state and federal courts. Since then, courts generally have limited prisoners' options, with justices this past term clashing over how closely they should scrutinize death penalty sentences by state courts.

The availability of federal court appeals, "particularly for state prisoners, goes far to making a mockery of the entire criminal justice system," Roberts wrote in a Nov. 12, 1981, memorandum, decrying the endless appeals that "obscures the rare serious claim."

Roberts also counseled former President Ronald Reagan's administration against some affirmative action policies, issuing a strong criticism of a U.S. Commission on Civil Rights report urging broader use of racial preferences.

He noted that a city police department had recruited minority cadets only to see them fail or drop out. "There is no recognition of the obvious reason for failure: The affirmative action program required the recruiting of inadequately prepared candidates," Roberts wrote.

Death penalty, affirmative action and abortion are all divisive issues on which Sandra Day O'Connor, the retiring justice whom Roberts has been nominated to replace, has been the swing vote. In recent terms, she has voted to uphold the use of race in college admissions and expressed concern about attorney competency in death penalty cases, so Roberts' views offer some insight in how key decisions could change.

As Roberts, 50, continued to make courtesy calls on senators Tuesday, Senate Republicans and the White House worked to try to assure a confirmation vote before the court begins a new term.

"Our duty is to have a justice seated by the first Monday in October, which is October 3rd," said Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee.

Specter said he would convene hearings as early as Aug. 29 if necessary to meet that timetable. A later date perhaps Sept. 6 also was possible, he said, depending on what type of assurances Democrats were willing to make.

Vermont Sen. Patrick Leahy, senior Democrat on the Judiciary Committee, said he wanted to cooperate with the Republican party.

"But moving forward on a schedule will also require the White House's cooperation with senators in answering their questions about this nomination," Leahy added.

Leahy and other Democrats on the panel wrote to President George W. Bush that they were disappointed that the White House has declared some documents off limits. The White House is invoking attorney-client privilege in withholding legal writings by Roberts when he was principal deputy solicitor general under former President George H.W. Bush.

"From what we know now, John Roberts had a hand in some of the most aggressive assaults on civil rights protections during the Reagan administration," Sen. Edward M. Kennedy, a Massachusetts Democrat, said in a statement. "The White House should make all relevant documents available so that the Senate can make an informed decision."

The disagreement over access to decades-old government records flared as Attorney General Alberto Gonzales suggested that, if confirmed, Roberts would not be bound by an earlier statement that the landmark 1973 ruling that established a woman's right to an abortion was settled law.

Gonzales told The Associated Press in an interview that "a Supreme Court justice is not obliged to follow precedent if you believe it's wrong."

Committee aides began sifting through the first of thousands of documents to be made available, dating from Roberts' tenure as a special assistant in the Justice Department, and in the White House counsel's office in 1983-86.

As a historical footnote, one memo was hard to beat a one-page paper in which the young Roberts reported that beginning "my first day on the job" he had been helping O'Connor prep for her own confirmation hearings to the high 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 the Sept. 17, 1981, memo.

Other memos from 1982 showed Roberts advising Smith to support Republican-led efforts in Congress to limit the federal judiciary's power to decide social issues such as abortion and school prayer.

In a document dated Feb. 16, 1982, Roberts offered further suggestions to Smith, who was girding for an appearance before conservatives unhappy with judicial nominations early in the Reagan administration.

Addressing criticism that judicial nominations weren't "ideologically committed to the president's policies," Roberts suggested something other than a "yes they are" answer.

"Rather, we should shift the debate and briefly touch on our judicial restraint themes," he wrote. "It really should not matter what the personal ideology of our appointees may be, so long as they recognize that their ideology should have no role in the decisional process."

It is a point that the Bush administration is making now that regardless of Roberts' personal views, he will rule based on the Constitution and court precedent.

By Hope Yen