Roberts Knocked Affirmative Action

Supreme Court nominee John Roberts criticized state efforts to battle sex discrimination, calling programs promoting affirmative action and comparable worth "highly objectionable" in his legal advice to President Reagan.

Roberts, who has been nominated by President Bush to replace the retiring Justice Sandra Day O'Connor, worked as associate counsel in the Reagan White House in the early 1980s during Reagan's first term.

In a Jan. 17, 1983, memo, Roberts was responding to a "Fifty States Project," which he described as addressing "perceived problems of gender discrimination" and which was to be sent to state leaders and women's groups.

He advised the White House to exercise caution in showing support for the proposals.

"Many of the reported proposals and efforts are themselves highly objectionable," Roberts wrote in a memo to then-White House counsel Fred Fielding, his boss.

"The California section of the report, for example, points to a passage of a law requiring the order of layoff to reflect affirmative action programs and not merely seniority (contrast our position in the Boston layoff case) and a staggeringly pernicious law codifying the anti-capitalist notion of 'comparable worth' (as opposed to market value) pay scales."

He also said that a Florida plan to charge women less tuition at state schools because they have less earning potential was "presumably unconstitutional."

Later in a Sept. 26, 1983 memo, Roberts showed skepticism for an equal rights amendment to the Constitution to "bridge the purported 'gender gap."' Responding to a letter from the Los Angeles Professional Republican Women, Roberts said the social rights issue was beyond the reach of federal courts.

"Any amendment would ipso facto override the prerogatives of the states and vest the federal judiciary with broader powers in this area, two of the central objections to the ERA," Roberts wrote.

Roberts also took a small shot at Senate Judiciary chairman Arlen Specter, R-Pa., while at the White House.

In 1983, Specter was considering a series of criminal justice proposals that would have cost $8 billion a year over a 5-10 year period. Specter's staffers were looking for White House approval of the idea, saying the proposals would reduce violent crime by 50 percent.

Roberts wrote on March 11, 1983, it was unlikely the proposals would receive serious consideration by the White House. "The proposals are the epitome of the 'throw money at the problem' approach repeatedly rejected by administration spokesmen," he said.


Roberts' time in the White House included the Cold War battles between Nicaragua's Sandinista government and the U.S.-backed Contra rebels.

Roberts said on Jan. 21, 1986 that he saw no legal problem with Reagan holding a White House briefing for the American Conservative Trust and the National Endowment for the Preservation of Liberty, groups that were about to spend $3 million on a public relations campaign to encourage Congress to provide direct aid to the Contras.

"It might be argued that the president is violating the spirit of the anti-lobbying provisions by assisting outside groups that encourage Congress to "write their Congressmen, but such an argument proves far too much, he said. Roberts described ACT and NEPL as "outside groups" and said that "White House briefings are often held" for such organizations "without the result that the groups are thereafter considered arms of the White House."

Congress might resent the White House's assistance to those groups and the campaign might backfire, however, he warned.

But Roberts also cautioned the White House on Feb. 21, 1986 that it could not align itself too closely with such groups, editing Reagan's commendation letters to them. "In the drafts, the president urges continuation of specific public information campaigns for the explicit purpose of pressuring Congress," he said. "I have attempted to edit the letters to mitigate the appearance problems."

He also warned the White House speechwriters not to encourage private citizens to send money to "freedom fighters" in a presidential speech, saying that would have been a violation of federal law.

"The president cannot encourage private citizens to engage in such activities," Roberts wrote in March 20, 1986. "The reference to private donations must either be deleted or revised to make clear that only donations for humanitarian aid (not covered by the Neutrality Act) are encouraged."

On Wednesday, the American Bar Association, the nation's largest lawyers group, called Roberts "well qualified." Republicans cheered the announcement.

But Democrats pointed out that the ABA never got the chance to see nearly 50,000 pages of records related to Roberts' time as associate counsel to President Reagan, or documents relating to his work in the solicitor general's office under the administration of President George H.W. Bush.

By Jesse J. Holland