US: Roberts' Past Involves Polarizing Cases - AP

Roberts' Past Involves Polarizing Cases
By GINA HOLLAND, Associated Press Writer
Fri Aug 5, 9:39 AM ET

John Roberts has handled thousands of cases as a lawyer and judge, but his Supreme Court confirmation hearing is likely to focus on just 16. The cases, all from his tenure as a deputy solicitor general under President George H.W. Bush from 1989-93, involve polarizing issues such as abortion, affirmative action, school prayer and capital punishment.

All are issues that still snarl the court. And in each, Roberts and his colleagues in the solicitor general's office, which argues the government's case before the court, advocated strongly conservative legal views.

The White House has refused Democrats' request for Roberts' writings on the cases, saying they are protected by attorney-client privilege.

Democrats aren't so sure. And since Roberts is not speaking publicly ahead of the hearings, they believe the documents can provide important insight into the legal philosophy of the 50-year-old appellate judge and whether his appointment might shift the court significantly to the right.

"The president cites Judge Roberts' work in this post as one of the reasons he made this nomination, and the committee will want to square these varying accounts to get as close to the truth as we can," said Vermont Sen. Patrick Leahy (news, bio, voting record), ranking Democrat on the Senate Judiciary Committee, which will consider the nomination beginning Sept. 6.

In one of the targeted cases, Rust v. Sullivan, Roberts co-authored a brief urging the court to overturn Roe v. Wade, the 1973 Supreme Court decision legalizing abortion. In another, Roberts was the lead attorney in Metro Broadcasting Inc. v. FCC, maintaining that the government should not favor minorities in the awarding of broadcast licenses.

The Rust appeal did not involve a challenge to abortion, but Roberts and other lawyers used the case to renew the contention that Roe v. Wade was wrongly decided. In the affirmative action case, Roberts took the unusual stand of refusing to defend the FCC and its minority preference rules. He wrote that it was "far from clear that the interest in promoting `programming diversity' is sufficiently compelling to justify the use of racial classifications that would otherwise infringe upon equal protection rights."

Abortion rights and affirmative action supporters are wary because Roberts would replace Justice Sandra Day O'Connor, who has voted to uphold Roe v. Wade and is the key swing voter on affirmative action issues. O'Connor wrote the dissenting opinion in the Metro Broadcasting case in 1990, when a split court voted 5-4 to uphold the FCC minority preference policies.

Roberts' criticism of racial "quotas" in some documents from his tenure as a White House lawyer during the Reagan administration has alarmed civil rights groups. The records in the Metro Broadcasting case, and two others involving school desegregation, could shed more light on his civil rights views.

In another case from Roberts' service as deputy solicitor general, he helped win a ruling limiting appeals of inmates who claim they have new evidence of innocence. That matter is back before the Supreme Court, which will decide next year whether to loosen the standard and allow new DNA evidence.

Roberts' supporters have cautioned against reading too much into his work in the solicitor general's office, noting that he was following the lead of his boss, Kenneth Starr, who later headed the investigation that led to President Clinton's impeachment.

But in a 1991 resume, Roberts played up his influence. "I had final responsibility for determining whether the United States would seek further review of adverse decisions in some 380 cases," he said.

In one case, Roberts and other Bush lawyers argued that schools and school officials could not face damage lawsuits for sexual discrimination under Title IX. A unanimous Supreme Court disagreed.

At least some solicitor general communications have been released to senators in the past, during the failed nomination of Robert Bork by President Reagan. Democrats seized on the extensive paper trail and used it to help scuttle his appointment.

Roberts would have been aware of that during his time in the first Bush administration and may have been more cautious in his writings because of it.

The requested documents include memos on cases and correspondence with people interested in them, potentially thousands of pages.

Amy Wax, a law professor at the University of Pennsylvania who worked in the solicitor general's office from 1988-94, said personal views didn't find their way into office paperwork. "You might say it in the lunch room," she said.

But Kermit Hall, a historian and president of the State University of New York at Albany, said the documents still could provide some insight.

"In the solicitor's office he was right in the middle of things. Politics and law meet in the solicitor's office," he said.



Lambda Legal & Human Rights Campaign Statements on Judge John G. Roberts and Romer v. Evans