Roberts for Chief Justice!!!
Jude Wanniski
August 19, 2005


Memo To: Karl Rove, White House deputy chief of staff
From: Jude Wanniski
Re: Release Everything!!!

I keep pinching myself, Karl, but the more stuff released about the way the President's Supreme Court nominee has thought about the judicial and philosophical foundation of our nation from his early years, the more I think he really should be presented as Chief Justice of the Supreme Court when Justice Rehnquist retires. The Democrats are yelling and screaming for you to release even more material from Judge Roberts' work in the Reagan administration, when he was in his 20s. They seem to think it will turn up material that will work against him, but I'm beginning to think the President has made one of the best decisions of his administration in choosing Roberts, and that you should encourage, invite a national focus on him and his views now and over time. The electorate will LOVE him, and those dopey Democrats who think the American people really want a High Court that legislates dopey social policy will discover how untrue that is. In other words, Karl, give the Democrats what they wish for and watch them wishing they had kept their mouths shut and simply voted for or against the nominee.

In the Times today, I read this story about the files released so far on Judge Roberts' assignments and writings in the Reagan administration. I thought I would just skim the first few paragraphs, but wound up reading every word, and at the conclusion decided that this is one hell of a fellow, and as much as I love Justice Clarence Thomas and have hoped he would be named Chief Justice, I now think the President should go straight to Roberts for the top spot, as soon as it opens. Which should be any day now.

Nominee's Early Files Show Many Cautions for Top Officials, Including Reagan

By Todd S. Purdum and John M. Broder

WASHINGTON, Aug. 18 - As a young lawyer in the Reagan White House, it was John G. Roberts Jr. who often found himself urging caution on his elders - including the president himself - in an effort to shield them from not only legal errors but also political blunders and public relations missteps, great and small.

Newly released documents from the Ronald Reagan Presidential Library reflect Mr. Roberts's repeated efforts to protect Mr. Reagan and his aides and supporters from some of their own most zealous instincts. He warned against excessive public presidential support for the Nicaraguan contra rebels. In 1984, he wrote a somewhat defensive note to his boss, the White House counsel Fred F. Fielding, arguing that it was all right for a presidential letter on minority business enterprise to speak of "encouraging government procurements," adding, "I do not think 'encourage' connotes anything in the nature of a set-aside or quota."

In 1984, Mr. Roberts objected to the proposed draft of a presidential campaign speech that would have had Mr. Reagan refer to the United States as "the greatest nation God ever created." Mr. Roberts wrote, "According to Genesis, God creates things like heavens and the earth and the birds and the fishes, but not nations." He added that the phrase was "a likely candidate for the 'Reaganism of the Week.' "

Like the thousands of pages of documents already released, the new files opened by the National Archives on Thursday show Mr. Roberts to be a faithful foot soldier in the conservative revolution that Ronald Reagan brought to Washington, embracing and echoing the administration's opposition to liberal programs like affirmative action and a controversial remedy for employment discrimination against women known as "comparable worth." But they also reflect his unwavering penchant for caution - and precision - in language and thought. He corrected misuses of the words "which" and "that" in draft White House documents. And in reviewing a proposed economic message in 1986 in which Mr. Reagan was to say, "I just turned 75 today, but remember that's only 30 Celsius," Mr. Roberts noted that 75 Fahrenheit is actually 23.9 Celsius.

Usually, the issues were more serious. In a 1983 memo commenting on draft fair housing legislation, Mr. Roberts warned against referring to "the fundamental right to be free from discrimination." Instead, he recommended language that invoked "the basic right to be free from illegal discrimination," because "there is no right to be free from discrimination, per se, and only some types of discrimination - for example, on the basis of race - are banned."

On Sept. 13, 1985, Mr. Roberts warned that the president's briefing materials for a forthcoming news conference should not include the statement "As far as our best scientists have been able to determine, the AIDS virus is not transmitted through casual or routine contact."

"I do not think we should have the president taking a position on a disputed scientific issue of this sort," Mr. Roberts wrote, adding, "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, and no scientist has said AIDS definitely cannot be so transmitted."

In several 1983 memos, Mr. Roberts derided passage of a California law that required the order of layoffs to reflect affirmative action considerations and condemned another "staggeringly pernicious law codifying the anti-capitalist notion of 'comparable worth' (as opposed to market value) pay scales."

He pronounced "presumably unconstitutional" a plan to charge women lower tuition at Florida state schools because they had less earning potential, and he doubted the merits of the proposed equal rights amendment to the Constitution, arguing that it would "ipso facto override the prerogatives of the states and vest the federal judiciary with broader powers in this area."

The latest documents appeared to contain no bombshells, but their simultaneous release at the main National Archives building here and the Reagan library in Simi Valley, Calif., nevertheless produced fevered interest. When the archives site opened at 11 a.m., 30 news organizations and 40 other entities - including Senate aides and advocacy groups - were waiting to pore over the 71 boxes of material, and the usually sober reading room had the air of a football press box at kickoff time.

Archives officials said some 1,708 pages of documents had been withheld on privacy or national security grounds, and the files contained slips noting the absence of documents relating to job applicants, personnel and disciplinary matters and other topics like Central America. In all, 50,000 pages have been released.

In the latest documents, Mr. Roberts - then in his late 20's and early 30's - reflects a keen awareness of the eyes of history that would someday fall upon him and his colleagues. In a Sept. 9, 1985, memorandum, he warned of the potentially chilling effect on White House staff deliberations of the Presidential Records Act of 1978, the post-Watergate law making internal White House memorandums government property and requiring their release 12 years after an administration's end.

"Twelve years is a brief lifetime in public life," Mr. Roberts wrote. "Many of the personalities candidly discussed in sensitive White House memoranda, and certainly many of the authors of the memoranda, will be active 12 years from now."

In a bit of foreshadowing, Mr. Roberts offered his views on the process of confirming Supreme Court nominees in a 1986 memo to Mr. Fielding, urging him not to respond to a review of a book about Supreme Court nominations authored by Laurence H. Tribe, a Harvard law professor, who had argued that presidents generally get what they expect from their Supreme Court appointments and that the Senate should more aggressively question potential justices.

"Some justices live up to the expectations of those who appoint them; some do not," Mr. Roberts wrote. "The Senate is free under the Constitution to consider whatever it cares to consider in voting on a nominee."

Mr. Roberts weighed in on a controversial issue of the Reagan era, urging restraint. In 1986, he reviewed a draft of remarks to be made by President Reagan at a briefing on United States aid to rebels fighting the Sandinista government of Nicaragua. Mr. Roberts said it would be inappropriate to compare the situation in Central America to the situation in Europe in the early 1940's, echoing Winston Churchill's famous declaration "Give us the tools, and we will finish the job."

"The analogy strikes me as the wrong one to draw, since England did not 'finish the job' on its own, as I gather we hope the contras will," Mr. Roberts wrote in a memorandum on March 12, 1986.

Mr. Roberts also warned that the president should not urge people to send telegrams and letters to Congress in support of the "freedom fighters" in Nicaragua. Such an explicit appeal, he said, could violate restrictions on the use of federal money to lobby Congress.

Mr. Roberts's erudition is apparent. In 1984, he wrote Mr. Fielding a memorandum entirely in French, summarizing the complaint of a French pop singer named Jacky Reggan, who wanted a letter from the president attesting that they were not related. Mr. Roberts volunteered to make a trip to Paris himself to investigate, but otherwise counseled no response, on the ground that Mr. Reggan would only use any reply for "publicité."

At other times his humor was clearly old school. In a 1985 memorandum on whether an administration official could be nominated for an award recognizing her transition from homemaker to lawyer, Mr. Roberts said, "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide."

Mr. Roberts showed particular concern for protecting the presidential image. He drafted an apologetic reply from Mr. Reagan to his old Hollywood friend Jimmy Stewart, declining to serve on the fund-raising board of a boarding school of which Mr. Stewart was chairman, noting that the president had decided to decline all such requests.

Mr. Roberts submitted his resignation from the White House counsel's office on April 10, 1986, with a letter addressed to President Reagan. He stated that it had been "a singular privilege, honor and delight" to serve in the administration over the previous five years, first as a special assistant to Attorney General William French Smith, and then for four years as a junior lawyer in the White House counsel's office.

"I know you receive many letters like this, and I recognize that over time they must come to seem fairly routine," he wrote to Mr. Reagan. "Please understand, however, that my years in your service will always be very special to me. The inspiration you have given me will burn brightly in my heart long after I have left the lights of the White House behind."

Copyright 2005 The New York Times Company