U.S. Supreme Court nominee Roberts advised O'Connor to be discreet at hearing

  • World
  • Thursday, 11 Aug 2005

By James Vicini

WASHINGTON (Reuters) - Supreme Court nominee John Roberts advised Sandra Day O'Connor, the moderate conservative he seeks to replace, to avoid specific answers at her Senate confirmation hearings about legal issues expected to reach the court, according to newly released memos. 

Those groups opposed to Roberts' nomination and even some Democrats say the tactic to not answer questions completely could be used by him to hide controversial views. The most recent nominees have pursued this approach to not indicate how they might vote in future court cases. 

Judge John Roberts, U.S. President George W. Bush's nominee to the Supreme Court, looks on after a meeting at the Hart Senate Office Building on Capitol Hill in Washington July 28, 2005. (REUTERS/Shaun Heasley/Files)

The memos from his days as a young Justice Department aide in 1981 were made available on Thursday by the National Archives and show the strategy Roberts himself is likely to use when he faces senators next month. 

The 50-year-old conservative, now a U.S. appeals court judge, began his involvement with O'Connor's high court appointment on his first day on the job on Aug. 10, 1981, as a special assistant to Attorney General William French Smith. 

"I started in on the process of preparing draft answers to questions that were likely to be asked during the confirmation hearings," Robert wrote in a Sept. 17, 1981, memo to Kenneth Starr, the counselor to Smith. 

"The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments," he said. 

Roberts, whose hearings before the Senate Judiciary Committee are scheduled to begin on Sept. 6, said he took part in two preparatory sessions with O'Connor before her hearings. 

President George W. Bush last month named the conservative Roberts to succeed O'Connor on the court that has been closely divided on such hot-button issues as abortion, church-state separation and the death penalty. 


In one memo, another Justice Department aide wrote that O'Connor asked her advisers to prepare a list of reasons for declining to answer questions concerning the 1973 Roe v. Wade ruling that gave women the constitutional right to choose an abortion. O'Connor went on to help write the court's opinion in 1992 reaffirming the landmark ruling. 

In a Sept. 9, 1981, memo to O'Connor, Roberts discussed the proper scope of questioning of a Supreme Court nominee. 

"The proposition that the only way senators can ascertain a nominee's views is through questions on specific cases should be rejected," Roberts wrote. 

A nominee would risk disqualification from a future case by answering a specific question, even if the nominee said the answer did not involve a promise to vote a certain way, Roberts said. "The appearance of impropriety remains." 

Judiciary Committee Democrats and Republicans have vowed to question Roberts about specific cases. 

Earlier this week, Sen. Arlen Specter, the committee chairman who will be running the hearings, wrote to Roberts to say he would ask about two other landmark Supreme Court decisions in the 1990s that limited the power of the U.S. Congress under the interstate commerce clause of the U.S. Constitution. 

In helping prepare O'Connor, Roberts said he went over the confirmation hearings for five previous high court nominees. 

"A topic outline of the more recent hearings ... was prepared to identify the major areas of questioning and pet projects and concerns of Judiciary Committee members," he said, adding that a digest of questions and answers was compiled. 

Although the Bush administration has made available records involving Roberts from 1981-82, it has refused to release internal documents that he wrote as deputy solicitor general at the Justice Department from 1989-1993. 

(Additional reporting by Deborah Charles, Vicki Allen, Susan Cornwell and Joanne Kenen) 

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