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August 30, 2005
Roberts -- Conservative But Not Crazy

Two news articles report on the release of additional material from the career of John Roberts, giving more ammunition to the opponents of his nomination to the Supreme Court while not providing any revelations or bomb bursts. Curiously, the pair continue the pattern of seeing more balanced coverage from the New York Times than the almost-hysterical tone provided on Roberts by the Washington Post.

For its part, the New York Times sticks to the relevant issues rather than rhetorical flourishes, and provides evidence both of Roberts' conservative leanings and common-sense approach to political extremism. Roberts expressed concern over the increasing police power that government agencies had taken, seeing this as an ever-increasing encroachment on individual rights. He advised the Reagan team that federal police powers should instead remain limited to the Justice and Treasury departments:

Mr. Roberts's advice was in a May 16, 1984, memorandum to the White House counsel, Fred F. Fielding, then his boss, at a time when agencies including the Environmental Protection Agency and the Bureau of Land Management were pressing for - and sometimes getting - police powers to handle problems like toxic waste investigations and armed marijuana growers in the West.

But Mr. Roberts's view, a classic conservative articulation of the individual's right to be protected from state power, rings with perhaps renewed relevance today, in light of the government's use of expanded law enforcement authority in pursuit of the war on terror. The memorandum was among the tens of thousands of pages of documents released in recent weeks from the Ronald Reagan Presidential Library and reviewed by The New York Times. ...

Mr. Roberts offered his views on expanded law enforcement powers as an associate White House counsel, reviewing proposed guidelines that would "represent a general administration commitment not to grant law enforcement authority to agencies other than Justice and Treasury." They would require an agency that sought such powers to prove that "the need cannot be met by other agencies with such authority."

The guidelines arose in a context in which various agencies were seeking new police powers, sometimes with the support of Congress and liberal groups, which questioned the Reagan administration's commitment to enforce environmental laws. In February 1984, for example, The New York Times said in an editorial that argued for an expansion of criminal investigators at the E.P.A., "Toxic waste dumping isn't just another white collar crime."

Mr. Roberts acknowledged that the administration's guidelines "will doubtless be viewed as an effort by Justice and Treasury to protect their 'turf,' but it is true that the proliferation of criminal law enforcement authority throughout the government is a dangerous trend that should be halted if not reversed."

This is a great example of solid, conservative legal thought. The reaction to the ever-expanding bureaucracy and its power over the lives of American citizens helped elect Reagan in 1980, and Roberts' thinking reflects this. It remains a problem today, and not just on the basis of encroaching on civil rights. Having a cornucopia of law-enforcement agencies makes for inefficient enforcement and more so an inconsistent approach to it. Unnecessary duplication of oversight eats up resources that a single law-enforcement agency could use to field more investigative personnel. Ensuring that abuses do not occur, or are quickly corrected, becomes an almost impossible task when so many different agencies conduct their own police forces.

The New York Times also notes that Roberts stuck to intellectually supportable conservatism and rejected extremists, even those who supported Reagan and his administration. The record shows that Roberts had little patience with Bob Jones University when it complained that Reagan hadn't done enough to support its efforts to bypass the INS for one of its foreign ministers, issuing threats to keep evangelicals at home in the next election. Roberts, who had seen the political capital Reagan had already spent trying to get Bob Jones University its tax-exempt status (which the Supreme Court later reversed), barely restrains his contempt for the university in his response to Fred Fielding, Reagan's White House counsel:

"The audacity of Jones's 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," Mr. Roberts wrote. "A restrained reply to his petulant paranoia is attached for your review, telling Jones, in essence, to go soak his head."

The Times analysis gives its readers a clear look at a conservative attorney, but one who operated in the mainstream and did not advise any currrying of favor with extremists. On the other hand, the picture painted by the Washington Post gives a much different impression -- a relentless portrait of a radical conservative who hates government programs. The Post gives little context to Roberts' thought, relying on rhetorical snippets instead to create this impression:

Supreme Court nominee John G. Roberts Jr. advised the Reagan administration's attorney general that "it makes eminent sense" to seek legislation permanently barring the use of employment quotas to redress discrimination and prohibiting the busing of students to foster the integration of schools, according to newly disclosed archival documents.

The March 15, 1982, recommendation to enact administration policy into law came up in a written assessment that year by Roberts and a colleague in the office of then-Attorney General William French Smith of legal issues raised by conservative groups. ...

In a memo written in 1983, after Roberts moved from the Justice Department to the White House counsel's office, Roberts left open the possibility that he agreed with a statement that the Equal Employment Opportunity Commission -- which is responsible for enforcing laws against discrimination -- was "un-American."

The memo, sent by Roberts to White House counsel Fred F. Fielding on June 7 of that year, noted that a citizen had written President Ronald Reagan to complain that the EEOC was "un-American" and that "he will hold the President to his promise to get rid of it." The letter was shunted to Roberts, who told Fielding he could not confirm that Reagan had made such a promise.

"We should ignore that assertion in any event," Roberts said, "as well as the assertion that the EEOC is 'un-American,' the truth of the matter notwithstanding. I have drafted a deliberately bland response for your signature."

One can make an argument that the EEOC, which has created many headaches for employers trying to comply with its vague requirements, does not meet the American ideal of treating people equally. In fairness, however, one must recognize the EEOC came as a reaction to a long, historical failure to meet that ideal, one the victimized minorities and women for decades if not centuries. Calling the EEOC itself "un-American" would be demgaoguic, but not a sin of the mortal proportions that the Post attempts to paint it, especially through the use of the people it quotes for reactions. Nor was it what Roberts said, but in fact part of a letter for which Roberts provided a response. The Post doesn't even report fact here -- it reports that his response "left open the possibility that he agreed" with that assertion. I suppose it left open the possibility that he thinks the moon is made of green cheese as well.

Is this the kind of fact-based reporting that the Washington Post wants us to expect? On the basis of their reporting on Roberts, it certainly appears that we can see more of it. Last week, Roberts was a racist for using an official designation of the Civil War as the "War Between The States". Two weeks ago, Roberts was a racist because of a house his parents bought, with a deed that had none of the exclusion clauses on which the Post based its allegations. Today, Roberts is a racist because he crafted a typical bland response to an angry citizen. If the Post wants us to see a pattern in these reports, they succeed -- but probably not in the way they imagine.

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Posted by Ed Morrissey at August 30, 2005 5:05 AM

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