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Roberts Was Not Strictly Conservative

Times Staff Writers

Supreme Court nominee John G. Roberts Jr. made it clear in his days as a Reagan administration lawyer that he did not share the traditional conservative fear of the U.S. government creating national identification cards for American citizens.

Rather, Roberts urged his superiors to switch course and support national I.D. cards because of what he called “the real threat to our social fabric posed by uncontrolled immigration.”

“I yield to no one in the area of commitment to individual liberty against the spectre of overreaching central authority, but view such concerns as largely symbolic so far as a national I.D. card is concerned,” he wrote in a memo to White House Counsel Fred F. Fielding on Oct. 21, 1983.

The memo is among nearly 45,000 pages of files from the Reagan Library that were released by the National Archives this week. Those are expected to be the last files opened to the Senate and the public before Roberts’ confirmation hearings, which start Sept. 6.

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Many of the memos reinforced the view that Roberts, at least as a young lawyer, was strongly conservative. Others showed him to be an independent thinker who steered clear of conservative dogma and who was capable of suggesting that a prominent Christian fundamentalist “go soak his head.”

On the issue of I.D. cards, he said that worries of a police state in the offing were badly exaggerated and that those who yearned for personal privacy were engaged in wishful thinking.

Even if citizens were required to have such a card, it would “not suddenly mean Constitutional protections would evaporate and you could be arbitrarily stopped on the street and asked to produce it,” he wrote.

“We already have, for all intents and purposes, a national identifier -- the Social Security number.... And I think we can ill afford to cling to symbolism in the face of the real threat to our social fabric by uncontrolled immigration,” he said.

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The Supreme Court to which Roberts has been nominated is expected to face the issue of privacy and identification in the response to terrorism.

The Department of Homeland Security has been working on ways to quickly check people’s identities at airports, train terminals and government buildings. In the future, people might need to have personal identifiers on file with the government to fly or to enter certain buildings.

Civil libertarians are expected to challenge at least some of these requirements as infringements on personal privacy.

Roberts also advised against having President Reagan reassure the public that AIDS could not be spread through “casual or routine contact,” a disputed belief at the time.

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Questions had arisen over whether children with AIDS could attend public schools. A briefing paper told Reagan that “our best scientists” said the virus was “not transmitted through casual or routine contact.”

Roberts objected in a memo on Sept. 13, 1985.

“I do not think we should have the President taking a position on a disputed issue of this sort.... I would not like to see the President reassuring the public on this point, only to find out he was wrong later. There is much to commend the view that we should assume AIDS can be transmitted through casual or routine contact, as is true with many viruses, until it is demonstrated that it cannot be,” Roberts wrote.

Roberts, who once clerked for Chief Justice William H. Rehnquist, said he was no fan of a 1986 book by liberal Harvard law professor Laurence H. Tribe, titled “God Save This Honorable Court.” The book urged senators to carefully scrutinize Reagan’s nominees to the Supreme Court. Donald Lively, a law professor at the University of Toledo, had written a review praising the book and criticizing Rehnquist.

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Roberts called the review “trite, sophomoric pablum” and urged Fielding not to write a response.

“Frankly, neither this review nor what I have read of Tribe’s book strike me as a serious undertaking worthy of a response. Some justices live up to the expectations of those who appoint them; some do not. The Senate is free under the Constitution to consider whatever it cares to consider in voting on a nominee,” Roberts wrote in a memo on Feb. 6, 1986.

As a young lawyer, Roberts also saw little to recommend in the idea that federal judges and Supreme Court justices receive lifetime appointments.

Roberts, now 50, sits on the U.S. Court of Appeals for the District of Columbia Circuit. If confirmed to the high court, he could conceivably serve there for decades.

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In a 1983 memo, he endorsed limits on judges’ terms. “Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence,” he wrote. “The Framers adopted life tenure at a time when people simply did not live as long as they do now. A judge insulated from the normal currents of life for 25 or 30 years was a rarity then, but is becoming commonplace today.”

Roberts also suggested, somewhat cryptically, in a June 1984 memo that he was not a big fan of Supreme Court Justice Harry A. Blackmun. Conservatives initially had welcomed Blackmun’s ascendancy to the high court, but by then he had become a thorn in their side -- particularly with his part in the 1973 decision favoring abortion rights in Roe vs. Wade.

Roberts was asked to comment on a congressional resolution designating June 13, 1984, as “Harmon Killebrew Day” -- just before the former Minnesota Twin was to be inducted into the Baseball Hall of Fame in Cooperstown, N.Y. The resolution quoted Blackmun, among others. Reagan should sign it, Roberts wrote to Fielding, adding: “Whatever his virtues as a jurist, Blackmun is one of the greatest fans of the game.”

In 1983, the young lawyer showed exasperation with Bob Jones III, president of the Christian conservative Bob Jones University in Greenville, S.C.

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The school had recently had its tax-exempt status revoked because of its racial policies.

And Jones was rebuffed by the administration when he sought help in arranging an extended visa for an Asian man who had been a professor at a Bible college and ministered to the poor in Birmingham, Ala. Roberts cautioned against White House involvement, drafting a response for Fielding that said it was “established White House policy” not to intervene on behalf of private parties in such matters, in part to “maintain public confidence in the impartial administration of the laws.”

A week later, Jones sent an angry response to Fielding: “I am sorry that once again the White House has shown itself totally insensitive to the interests of Fundamental Christians who put Mr. Reagan there.”

“The greatest human rights violations taking place in America at this hour are being directed against Fundamental Bible-believing Christians, and they are taking place by the bureaucracy under the Reagan Administration. Believe me,” Jones added, “this has not gone unnoticed by that sizable voting block to whom Mr. Reagan owes so much.”

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Fielding forwarded the letter to Roberts, who responded in a memo to his boss on Jan. 4, 1984:

“The audacity of Jones’ reply is truly remarkable, given the political costs this Administration has incurred in promoting the interests of Fundamental Christians in general and Bob Jones University in particular. A restrained reply to his petulant paranoia is attached for your review, telling Jones, in essence, to go soak his head.”

Savage reported from Washington and Weinstein from Los Angeles. Times staff writer Richard Simon in Washington contributed to this report.


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