After days of Democratic deference to John Roberts, Sen. Edward M. Kennedy said Thursday that documents made public so far indicate the Supreme Court nominee holds a “rather cramped view of the Voting Rights Act.”
Materials that Roberts drafted while at the Justice Department and White House counsel’s office during the Reagan administration “certainly raise some questions in my mind about his commitment” to civil rights, said Kennedy, D-Mass.
Kennedy’s remarks showed a willingness to raise pointed questions when most other Democrats have stuck to pleasantries about Roberts’ credentials ahead of his confirmation hearings.
Sen. John Cornyn said senators should not draw “premature conclusions based solely” on memos drafted when Roberts, now a federal appeals court judge, worked at the Justice Department two decades ago.
“And I hope that no senator would attempt to paint Judge Roberts as hostile to civil rights based on memos written for a client — memos analyzing the law, not personal views,” said Cornyn, R-Texas.
A question of timing
President Bush named Roberts last week to succeed retiring Justice Sandra Day O’Connor.
The White House and Senate Republicans are demanding a final confirmation vote before the Supreme Court begins its new term on Oct. 3.
Senators seemed to be heading toward starting the hearings on Sept. 6, even though the committee chairman, Sen. Arlen Specter, has indicated he could begin by Aug. 29. Waiting until September would preserve the full August vacation that senators have planned. It also would pressure Democrats to allow a final vote by Sept. 29, the last business day before the court convenes.
According to these officials, Democrats have suggested at least one concession that would give up some of their rights to delay proceedings. The officials spoke on condition of anonymity, saying the discussions were private and they were not authorized to discuss them.
A looming point of contention is access to documents from Roberts’ services in Republican administrations.
Debate over documents
The White House has released documents dating to Roberts’ work as a special assistant at the Justice Department early in the Reagan administration. The White House also has pledged to expedite release of records from Roberts’ time in the White House counsel’s office from 1983 to 1986.
Bush administration officials have said they will refuse to release any of the documents from Roberts’ tenure as principal deputy solicitor general during the administration of the first President Bush.
The president’s spokesman, Scott McClellan, said this week the decision was “to preserve the attorney-client privilege for this administration” as well as future administrations.
Sen. Patrick Leahy of Vermont, senior Democrat on the Judiciary Committee, hopes to enlist Specter, R-Pa., in urging the White House to reconsider.
Kennedy told reporters that Democrats would request documents “limited and targeted on cases related to the Constitution.”
Democrats have circulated material showing that previous Republican and Democratic administrations have been more forthcoming with internal Justice Department memos.
Civil rights era decisions
Reagan took office at a time when the civil rights movement was celebrating gains of the previous two decades and working to achieve new victories in Congress. As a conservative who often expressed suspiciousness of government’s power, Reagan fought numerous battles with civil rights advocates, and the Justice Department was often involved.
Kennedy’s office invited reporters to a briefing, and aides distributed documents that touched on civil rights cases from two decades ago, when Roberts worked for the Reagan administration.
At the time, Congress was considering an extension of the 1965 Voting Rights Act against the backdrop of a Supreme Court ruling that held that “proof of intent” was needed to demonstrate someone’s rights had been violated.
House Democrats sought legislation to change so election results would be sufficient.
In a draft opinion article he sent to a county commissioner in San Antonio, Roberts wrote that the proposal would “not simply extend the existing and effective Voting Rights Act, but would dramatically change it. ... It’s not broken so there’s no need to fix it.”
In another document, Roberts, then working in the White House, wrote that legislation designed to overturn a different Supreme Court ruling would “radically expand the civil rights laws to areas never before considered covered.” He recommended against it.
In a third, he wrote that the administration could “go slowly on housing legislation” without fearing political damage.
Roberts turned aside questions from reporters as he continued get-acquainted meetings with senators of both parties. “I don’t think it’s appropriate for me to answer questions outside of the Judiciary Committee, which I’m looking forward to,” he said.
Sen. Ben Nelson, D-Neb., said after his meeting that Roberts “said he would not be an activist judge.”