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Some Roberts Documents Released

Times Staff Writers

The White House opened to the public Tuesday thousands of pages from the files of a young assistant attorney general but declared off-limits all the files from the years when John G. Roberts Jr., now a Supreme Court nominee, was a top government lawyer urging the repeal of the Roe vs. Wade abortion ruling.

No one on Capitol Hill had asked for the Reagan-era files. But Senate Democrats said they were interested in what Roberts wrote and said during his four years in the first Bush administration as top deputy to Solicitor Gen. Kenneth W. Starr. Of particular interest is his role in Starr’s attack on Roe vs. Wade.

It is not clear whether Roberts, deputy solicitor general from 1989 to 1993, agreed with the administration’s position in the abortion cases. But the White House, arguing the information is privileged, made it clear Tuesday that it did not want to reveal what he said or wrote during those years.

“What we are providing goes above and beyond what a reasonable person would expect to be made available,” said President Bush’s spokesman, Scott McClellan. “This is more than what senators need to be able to do their job.”

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Eight Senate Democrats called the White House move “premature and ill-advised.”

“We are disappointed that the White House appears to have so quickly moved to close off access by the Senate to important and informative documents written by Supreme Court nominee John Roberts while he was at the Department of Justice,” they said in a letter to Bush.

Other documents that the Senate will not get include Roberts’ tax returns for the last three years, the Washington Post reported today, citing a shift in policy. Instead, the IRS will provide a one-page “tax check” summary of his three most recent returns. Though it was not publicly announced at the time, a long-standing policy of requiring judicial nominees at all levels to release three years’ of tax information was changed in 2001, when the Bush administration took office, “to reduce the duplicative paperwork and streamline the process,” White House spokeswoman Dana Perino told the Post.

The White House did not immediately return a call seeking comment.

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The documents dispute broke a period of relative harmony between the White House and Senate Democrats on Roberts’ nomination.

Nearly all of the Democrats had agreed that the president’s high court nominee was well-qualified. But several Judiciary Committee members said they wanted to learn more about Roberts’ views on the law before deciding whether to support him.

In 1989, President George H.W. Bush tapped Roberts to be Starr’s deputy at the solicitor general’s office. Starr and Roberts led a small team of conservative lawyers and career attorneys who represented “the United States” and federal agencies before the Supreme Court.

Starr’s office intervened in a 1992 Pennsylvania case to ask the high court to reverse its abortion ruling. “The protection of human life -- in and out of the womb -- is certainly the most compelling interest a state can advance.... In our view, a state’s interest in protecting fetal life throughout pregnancy as a general matter outweighs a woman’s liberty interest in an abortion,” Starr said.

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Starr and Roberts also intervened in cases to call a halt to long-running school desegregation plans, to allow public schools to have prayers at graduation ceremonies, and to make it harder for environmentalists to challenge the government in court.

Roberts appeared twice before the high court to defend abortion protesters who had been sued for blockading clinics and on accusations of conspiring to violate the rights of women seeking abortions. His argument that civil rights laws did not protect women from such protests won a 6-3 ruling from the court.

The White House defended its decision to withhold the documents, citing the attorney-client privilege. It would have a “chilling effect” on debates within the government if lawyers knew their advice might be released to the public, McClellan said. He said the White House had not examined the records relating to Roberts’ tenure as deputy solicitor general under the president’s father: “It’s not appropriate for us or others to have these documents, and it has no bearing on Judge Roberts’ suitability to serve on the court,” he said.

Liberal activists and some Democrats sharply disagreed.

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“What are they trying to hide?” asked People for the American Way President Ralph G. Neas. “John Roberts was a top political and legal strategist during contentious debates over voting rights, affirmative action, reproductive choice, school desegregation, the separation of church and state, environmental protection and discrimination in federally funded education programs against women, minorities, people with disabilities and older Americans.”

The White House has not objected to the release of files from Roberts’ stint as a special assistant to Atty. Gen. William French Smith in 1981 and 1982, or to the release of files from the Ronald Reagan Presidential Library near Simi Valley from Roberts’ work as an attorney in the White House counsel’s office.

McClellan said that because the solicitor general’s office was subject to the Federal Records Act, documents from that office were protected from disclosure. Though the White House counsel plays a parallel role as lawyer to the president, that office comes under a different statute, the Presidential Records Act, McClellan said.

Under that law, “there is a presumption of disclosure,” he said. “All of us who come here and work at the White House know that what we are doing is going to be disclosed publicly.”

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The process the White House used to disclose its plans for the documents was as selective as the policy itself.

On Monday evening, an unnamed White House official contacted the New York Times, the Washington Post and Associated Press and agreed to brief them on its plans on the conditions that the information be attributed to “senior administration officials” and that the information not be used until after midnight. This ensured that the first round of stories on the plan would not be subjected to criticism.

Despite the White House assertion that the material went beyond what the Senate needed to thoroughly vet the nominee, the documents revealed little about Roberts’ views.

His duties included such varied tasks as drafting a law-review article for Smith on the insanity defense, shepherding Reagan nominees to the U.S. Civil Rights Commission and returning a $25 political contribution to an Ohio man who had written to the department about proposed FBI surveillance guidelines.

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In an Aug. 31, 1982, memo, he urged Smith not to pursue a case in which the Education Department was investigating the University of Richmond for violating federal laws banning sex discrimination in the funding of college athletic programs.

Federal investigators “cannot rummage wily-nily” through the records of university athletic departments, he wrote. “The women’s groups pressuring us to appeal would have regulatory agencies usurp power denied them by Congress.”

On Sept. 23, 1982, he drafted a letter for Smith to the editors of the Washington Post, commenting on an editorial about abortion cases heading to the Supreme Court. The editorial decried the then-growing involvement of the courts in the abortion debate.

In his draft for Smith, Roberts underscored the need for “judicial restraint” without commenting on abortion directly, saying that when courts “intrude on areas reserved to the democratically accountable branches they encourage the atrophy of those branches and weaken the democratic process.”

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The same month, Roberts prodded Smith to confront then-Housing and Urban Development Secretary Samuel R. Pierce Jr., then the highest-ranking African American in the Reagan administration. Pierce had publicly questioned the Reagan’s commitment to civil rights.

Times staff writers Richard B. Schmitt and Maura Reynolds contributed to this report.


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