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Roberts data hit gender equality issue
Friday, August 19, 2005

WASHINGTON -- As an associate White House counsel in the 1980s, John G. Roberts Jr., President Bush's Supreme Court nominee, criticized what he called "highly objectionable" policies designed to remedy gender discrimination and urged his colleagues to reiterate the Reagan administration's opposition to an Equal Rights Amendment to the U.S. Constitution.

Roberts' comments, contained in a new batch of papers released yesterday by the Ronald W. Reagan Presidential Library and Museum and by the National Archives, provide additional ammunition for critics who already were calling for the U.S. Senate to question Roberts closely about his views regarding women's rights.

Previously released files from Roberts' time in the Reagan administration showed that he had criticized a lawsuit in which female prisoners sought vocational training equal to that offered to male inmates and that he denounced the argument that, under equal-pay laws, women should be paid the same as men if they did jobs of "comparable worth" to male-dominated occupations.

"Comparable worth" came in for further criticism from Roberts in a Jan. 17, 1983, memo to White House Counsel Fred Fielding in which Roberts commented on a pending report by the Fifty States Project, a survey of efforts around the nation to address what Roberts called "perceived problems of gender discrimination."

After being advised that Elizabeth Dole, then Reagan's assistant for public liaison, planned to send the Fifty States Project report to public officials around the nation, Roberts warned Fielding that some project's sections provided by the states praised initiatives that the Reagan administration opposed.

"The California section of the report, for example, points to the passage of a law requiring the order of layoffs to reflect affirmative-action programs and not merely seniority (contrast our position in the Boston layoff case), and a staggeringly pernicious law codifying the anti-capitalist notion of 'comparable worth' (as opposed to market pay scales)," he wrote.

Roberts also noted that several of the report's state sections often approvingly cited the introduction or enactment of state equal-rights amendments. "I think it is imperative that the report make clear (as it presently does not) that the inventory is just that, an inventory, and that proposals appearing in it are not necessarily supported by the administration," he wrote.

Roberts also took a tough line on a national Equal Rights Amendment. In 1972, Congress approved an amendment saying: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." But conservatives rallied against the amendment, and it never achieved the necessary ratification by three-fourths of the states.

In a Sept. 26, 1983, memo to Fielding, Roberts responded to a letter, passed along by presidential aide Michael Deaver, in which Republican activist Donna Little of Los Angeles urged Reagan to embrace an Equal Rights Amendment as a way to close the "gender gap" with Democrats. Little also volunteered to help with the wording of a new ERA.

"Little's idea is neither theoretically nor practically sound," Roberts wrote. "Many of the president's objections to the ERA are based not on the particular language of the proposal but rather the vehicle of a constitutional amendment. Any amendment would ipso facto override the prerogatives of the states and vest the federal judiciary with broader powers in this area, two of the central objections to the ERA."

Also among the papers released yesterday was a file touching on another issue likely to loom large at Roberts' confirmation hearings: the extent to which he believes that Congress may regulate activities of state governments.

The file contains a draft brief by then-Solicitor General Rex Lee, the Reagan administration's top courtroom lawyer, in which the administration addressed the question of whether Congress had the authority under the Constitution's Commerce Clause to require a mass-transit agency in San Antonio, Texas, to abide by federal wage and hour laws.

The Reagan administration supported application of federal law to transit workers, while it took a state's rights position on whether Congress could regulate the wages of workers involved in "traditional governmental functions." But Lee's brief was apparently not sufficiently pro-states'-rights for Roberts. The copy of Lee's brief in Roberts' files contains this sentence: "Thus we do not suggest that the Tenth Amendment by itself establishes any judicially enforceable doctrine of state immunity." In the margin is written the word "NO," with a double underline.

Yesterday's disgorgement of 38,000 pages from Roberts' 1982-1986 tenure in the White House Counsel's Office strengthened impressions left by previous disclosures that he was not only a convinced conservative but also a self-assured adviser, willing to take on more senior Washington figures.

For example, in his 20s, Roberts was supremely confident in heaping scorn on a pet project of Pennsylvania Sen. Arlen Specter -- then, as now, a prominent Republican in Congress and the man who, as Senate Judiciary Committee chairman, will preside over Roberts' confirmation hearings next month.

Asked to comment on a voluminous Specter "white paper" proposing a "national program to cut violent crime," Roberts wrote a memo to Deputy White House Counsel Richard A. Hauser that said the Specter plan "would increase federal law enforcement expenditures by $2 billion." Specter's proposals, he added, "are the epitome of the 'throw money at the problem' approach repeatedly rejected by administration spokesmen."

Like previously released files, yesterday's batch contained traces of Roberts' dry wit.

"Nothing surprises me anymore" is the way Roberts begins a 1984 memo in which he notes that "the person who created the Ronald Reagan novelty wristwatch (whatever that is) has asked permission to name race driver Jim Robertson's car the 'Ronald Reagan.' ... Presumably, the president's name would be plastered alongside the STP, Champion sparkplug, Quaker State Motor Oil and Goodyear tire stickers."

First published on August 19, 2005 at 12:00 am
Michael McGough can be reached at 202-662-7025 or mmcgough@nationalpress.com.
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