As a young Justice Department lawyer, John Roberts helped guide Supreme Court nominee Sandra Day O’Connor through the Senate confirmation process he now confronts as the choice to replace her.
Roberts was just six weeks into his job when he drafted a memo to Kenneth Starr describing his work with O’Connor. The young Roberts said he helped ready O’Connor for her confirmation hearing, preparing draft answers to questions she was likely to be asked.
“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 to Starr, who later became solicitor general and then served as a special prosecutor investigating President Clinton.
The document was among thousands of pages released Tuesday at the National Archives in College Park, Md., covering part of Roberts’ tenure as a lawyer in the Reagan administration.
A document dated Feb. 16, 1982, showed Roberts offering advice to then-Attorney General William French Smith, who was getting ready for an appearance before conservatives unhappy with the direction the Justice Department was taking 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.”
Other memos show Roberts encouraging his boss to support Republican-led efforts in Congress to limit the federal judiciary’s power to decide hot-button social issues such as abortion and school prayer.
Roberts’ stand put him at odds with another rising star in the Justice Department _ Theodore Olson, who in 2001 became solicitor general. Olson suggested in a memo dated April 12, 1982, that it would be politically advantageous for the administration to oppose limits on court powers.
Olson said that it “would be perceived as a courageous and principled decision, especially in the press, and may have high salutary long-term benefits to the president.”
Roberts, in his copy of Olson’s memo, highlighted that paragraph and wrote his own thoughts in the margins: “Real courage would be to read the Constitution as it should be read and not kowtow” to liberal legal leaders.
Roberts, in a memo to Smith, listed law professors who believed Congress had the power to limit court jurisdiction, citing among them Antonin Scalia, now a Supreme Court justice.
Elsewhere, Roberts showed a hint of irreverence. In one case, passing along documents from Alabama on the state’s prayer law, signing off on the July 29, 1982, note with “Amen.”
On Sept. 16, 1982, Roberts wrote a note about an upcoming meeting between the attorney general and Coretta Scott King. He told Smith that the widow of Martin Luther King Jr. was in town promoting the success of a program at the King Center in Atlanta, but Roberts remarked that others had described the program as poorly run.
“As you know we have phased out the LEAA program and there simply is no money available for additional funding,” he wrote. Still, he encouraged Smith to show support for the effort.