Supreme Court nominee John Roberts advised then-high court nominee Sandra Day O'Connor in 1981 to stand firm in her insistence not to talk about specific court cases like Roe v. Wade, saying it could bring up impropriety and possibly disqualification issues later.
In documents released by the National Archives on Thursday, Roberts — then special assistant to Attorney General William French Smith and assigned to help O'Connor through her confirmation process — wrote O'Connor to rebut a university professor's memo.
The memo argued that senators can only determine a nominee's views through asking specific questions about specific cases. Answering those questions would not put a justice in danger of having to be disqualified from hearing future cases on that subject if it was made clear that the nominee was not promising to vote one way or the other, the memo said.
That theory should be rejected, Roberts said.
Roberts warned against impropriety
"The suggestion that a simple understanding that no promise is intended when a nominee answers a specific question will completely remove the disqualification question is absurd," Roberts wrote to O'Connor in a Sept. 9 letter. "The appearance of impropriety still remains."
Roberts has been nominated by President Bush to replace O'Connor on the Supreme Court this fall, and senators are jockeying over whether he should answer specific questions on abortion, affirmative action, school prayer and capital punishment.
Following the advice she heard, O'Connor refused to talk to senators about specific cases and was confirmed by the Senate.