What is the White House Hiding About John Roberts?

More than 38,000 pages of Supreme Court nominee John Roberts’ work for the Reagan administration were released Thursday as the White House and Congress played tug-of-war over Roberts’ papers as a top Supreme Court lawyer for President Bush’s father.

The latest release of 38,546 of some 51,285 pages of Roberts’ work as associate Reagan White House counsel from 1982 to 1986 were released simultaneously at the Ronald Reagan Presidential Library in Simi Valley, Calif., and the National Archives in Washington.

Assistant Archivist Sharon Fawcett told 30 news organizations assembled at the Archives’ 1934 neoclassical headquarters that “the 70 boxes of records were Federal Expressed from the Reagan Library so you don’t have to go to California.”

Reporters were required to store notebooks, pens, pencils and even suit coats and jackets _ everything but laptop computers and scanners _ before going to the “clean” Central Reading Room, with its walnut paneling, coffered ceilings and two-story windows overlooking Pennsylvania Avenue, halfway between the White House and Congress.

The latest release includes Roberts’ memos on affirmative action, including a 1983 memo to his boss, Reagan White House Counsel Fred Fielding, criticizing state affirmative action plans aimed at combating job bias. Roberts urged White House caution in supporting state plans, calling some “highly objectionable” and singling out a California law to allow proportional layoffs to protect minority and women’s gains rather than seniority in the face of budget cutbacks.

At the time, the Reagan administration was urging the Supreme Court to honor seniority agreements over race-conscious affirmative action programs in public-employee layoffs in appeals from Boston and Memphis.

Roberts’ views on the issue are important because he would replace retiring Justice Sandra Day O’Connor. She wrote the majority decision upholding affirmative action’s continued use in college admissions in 2003 in a 5-4 decision that was the Supreme Court’s latest word on the issue.

Roberts’ affirmative-action advice also took on added importance when the Archives disclosed that a file folder of Roberts “Affirmative Action Correspondence” had disappeared from the Reagan Library after two Bush administration lawyers reviewed it and returned it to the library staff in July.

Reagan Library archivists believe they have reconstructed the likely contents of the missing folder labeled “Affirmative Action Correspondence” through a search of the electronic database, said Fawcett, the assistant archivist for presidential libraries. But she added that the Archives inspector general has opened an investigation into the lost file.

Although the Reagan Library and Archives released 51,285 pages of Roberts’ work for Reagan, the Bush White House has refused to release any documents from Roberts’ time in the solicitor general’s office, which presses administration positions in the Supreme Court. Roberts worked there from 1989 until 1993 as principal deputy to the senior President Bush’s solicitor general, Kenneth Starr.

Sen. Patrick Leahy of Vermont is ranking Democrat on the Judiciary Committee and will lead the Democrats’ questioning of Roberts at confirmation hearings that start Sept. 6. Leahy called it “regrettable” that the Senate and the public have “not yet had access to work papers from Judge Roberts’ most substantive earlier post, in the solicitor general’s office.” On Friday, Alliance for Justice and other liberal advocacy groups will join the call for release.

Attorney General Alberto Gonzales cited attorney-client privilege in withholding Roberts’ solicitor general work papers, although other Supreme Court nominees who had served as solicitors general were willing to release their papers. Reagan nominee Robert Bork, who failed to win Senate confirmation in 1987, released papers from his time as Nixon solicitor general.

The Reagan Library and the Archives have withheld another 1,700 Roberts papers from the Senate and public after deeming them sensitive for national security, privacy and law-enforcement reasons, so they could be withheld under Freedom of Information Act exemptions. Leahy said Library officials have agreed to release 478 pages of documents that were withheld from Monday’s release of more than 5,000 pages.

(Contact Mary Deibel at DeibelM(at)shns.com.)