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Reagan Employee Roberts Aided Efforts to Recast Rights Law
Published on Monday, August 1, 2005 by the Boston Globe
Reagan Employee Roberts Aided Efforts to Recast Rights Law
by Amy Goldstein and Jo Becker

WASHINGTON - In the early 1980s, a young intellectual lawyer named John G. Roberts Jr. was part of the vanguard of a conservative political revolution in civil rights, advocating new legal theories and helping enforce the Reagan administration's effort to curtail the use of courts to remedy racial and sexual discrimination.

We were there to reverse course from the policies of the Carter administration, certainly.

Charles J. Cooper, former deputy to the assistant attorney general for civil rights
Just 26 when he joined the Justice Department as a special assistant to Attorney General William French Smith, Roberts was almost immediately entrusted to counsel senior department officials on such incendiary matters of the day as school desegregation, voting rules, and government antidotes to bias in housing and hiring.

In prolific missives of a few pages and densely-written 30-page legal memos, Roberts -- whom co-workers recall as having primary responsibility for civil rights matters in his office -- consistently sought to bolster the legal reasoning for the administration's new stances and to burnish its presentation of the policies to Congress and the public.

Roberts's record is being closely scrutinized, and Democrats on the Senate Judiciary Committee say they will rigorously question the Supreme Court nominee on his views on civil rights. A review of Roberts's papers from his time at the Justice Department and interviews with his contemporaries show he was deeply involved with the Reagan administration's efforts to recast the way government and the courts approached civil rights.

He wrote vigorous defenses, for example, of the administration's version of a voting rights bill, opposed by Congress, which would have narrowed the reach of the 1965 Voting Rights Act. He challenged the arguments of the US Commission on Civil Rights in favor of busing and affirmative action. He described a Supreme Court decision broadening the rights of individuals to sue states for civil rights violations as causing ''damage" to administration policies, and he urged that legislation be drafted to reverse it. And he wrote a memo arguing that it was constitutionally acceptable for Congress to strip the Supreme Court of its ability to hear broad classes of civil rights cases.

For young conservatives such as Roberts, many of whom had spent the years of the Carter presidency in elite schools or cooling their political heels, the first two years of Reagan's presidency were a heady period. Civil rights was an issue of enormous importance to the Republican Party's fortunes and to businesses and local or state governments frustrated by what they regarded as decades of judicial intrusion.

Justice was ''the most intellectual, the most thoughtful, and certainly one of the most conservative agencies" at that time, said Terry Eastland, who arrived at the department as Smith's speechwriter a few months after Roberts departed and now publishes a conservative magazine, the Weekly Standard.

Colleagues say Roberts, then a recent Harvard Law School graduate and clerk to Supreme Court Justice William H. Rehnquist, was an ideologically close fit with the other special assistants to Smith and his top appointees. The special assistants were mostly white males in their 20s who ate lunch almost daily with Smith in his private dining room and then worked late into the night to advance the administration's views.

''We were there to reverse course from the policies of the Carter administration, certainly," said Charles J. Cooper, who worked closely with Roberts while serving as a special assistant and later as deputy to the assistant attorney general for civil rights. ''Everybody was there with similar goals and intentions."

Within the group, Roberts ''certainly wasn't a shrinking violet; he made known what he thought," Cooper added. Others with strong voices included Assistant Attorney General for Civil Rights William Bradford Reynolds, special assistant Carolyn Kuhl, Deputy Assistant Attorney General for Civil Rights J. Harvie Wilkinson III, Deputy Assistant Attorney General Richard Willard, special counsel Tex Lezar, and counselor to the attorney general Ken Starr, Roberts's immediate boss. Some played prominent roles in Washington and in conservative ideology.

Catherine L. Anderson, a White House fellow who arrived as a special assistant to Smith in late summer 1982 and is now a state district court judge in Minneapolis, recalls that Roberts and the others in the office ''were very dedicated to the president's agenda and the things he had set out in the campaign as his ambitions." The group was, in the words of Bruce Fein, then an associate deputy attorney general, ''a band of ideological brothers" determined to make a lasting stamp on the nation.

Many, like Roberts, had attended premier law schools, surrounded by liberal students and professors. Now, they were side by side with people who shared their views.

They read and discussed books such as Plato's ''Republic," the Federalist Papers, and Adam Smith's ''The Wealth of Nations" and contemplated ''how to leave a legacy that goes beyond passing this bill or that," said Fein.

These policies provoked controversy when applied to civil rights. A nonpartisan group that included some government attorneys, the Washington Council of Lawyers, said in a September 1982 report that the Justice Department had ''retreated from well-established . . . policies," disregarded principles embraced by the courts and Congress, and created new legal precedents that impeded minority rights in employment, housing, voting, and education.

But Roberts denied in memos at the time that what he called ''critics" were correct about the administration's lax enforcement, and he condemned bitterly in a statement drafted for Smith the ''disingenuous accusations of those who, for political reasons, seek to cloud rational discussion with false charges of racism."

A generation later, it is difficult to discern the extent to which Roberts, a federal judge for just two years, still holds these views and to determine how he might exercise them if the Senate next month confirms his nomination.

Fein said Roberts had deeply held convictions during his tenure at the Justice Department, and ''these aren't principles that evaporate or walk away."

In August 1981, less than a month after Roberts started working at the Justice Department, he wrote a memo for the attorney general about a meeting that the chairman of the US Commission on Civil Rights, Arthur S. Flemming, had requested to discuss what Roberts called ''the purported need for race-conscious remedies such as busing and affirmative action."

In the memo, Roberts derided a report Flemming had passed along from his own staff, laying out the commission's reasons for favoring such strategies. Roberts wrote that the report ''is subject to serious criticism" and advised the attorney general: ''If a meeting is held with Mr. Flemming, a strong response to his view of civil rights enforcement could be made."

Reagan dismissed Flemming in 1982.

In 1981, Roberts stepped in after low-ranking attorneys in the Justice Department's civil rights division advised two school systems near Atlanta to offer jobs and back pay not only to those who had been turned down for work because of discriminatory policies, but also to those who could show they were deterred from applying for jobs at the schools because of bias.

Roberts, he fired off a note to Reynolds and Cooper, stating that the division's demand did not faithfully reflect the law. ''A strong argument can be made that back pay for nonapplicants should not be sought," Roberts said. 

© Copyright 2005 Boston Globe


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