The memos were not exactly smoking guns, but they were sure to add fire to Judge John Roberts's confirmation hearings. When Roberts was nominated for the U.S. Supreme Court by President George W. Bush two weeks ago, he was initially described as a model of calm restraint. But then came the release of several thousand pages of memos and documents from Roberts's time as a lawyer in the Reagan White House and Justice Department in the 1980s. As portrayed in press accounts, Roberts seemed cocksure and to the right of even his conservative bosses. "With every passing day, it is becoming clearer that John Roberts is one of the key lieutenants in the right-wing assault on civil-rights laws and precedents," said Ralph Neas, president of the liberal advocacy group People for the American Way.
The memos do show that Roberts was an eager spear carrier in the Reagan revolution. But they do not necessarily suggest that he would be a precedent-shredding conservative activist on the high court. Interviewed by NEWSWEEK, lawyers who worked with Roberts at the time offered some important historical perspective and human context.
When the Reaganauts took over in 1981, the federal courts had been moving to the left for at least two decades. The young lawyers advising Attorney General William French Smith and President Ronald Reagan were encouraged by their bosses to push back. "There was a lot of aggressive, intellectual probing of the underpinnings of accepted wisdom," recalls David Hiller, who worked with Roberts at Justice. "Roberts liked to challenge the status quo." In 1982, Assistant Attorney General Ted Olson argued in a memo that the administration should oppose GOP attempts in Congress to strip the courts of jurisdiction over abortion, busing and school prayer, in part because opposing the bills would "be perceived as a courageous and highly principled position, especially in the press." Roberts, fresh from law school and clerking for conservative judges, wrote "No!" in the margin. "Real courage would be to read the Constitution as it should be read and not kowtow" to liberal jurists and columnists.
Roberts "did have a certain cheeky, irreverent side that was encouraged by Fred [Fielding, Reagan's White House counsel]," says Wendell L. Willkie II, a fellow White House lawyer. Some of Roberts's colleagues recall that he could be cutting. But they add that he generally chose to be sarcastic toward colleagues who could dish it back, and that he was still young, in his late 20s, and not yet fully formed. One former colleague, now a Bush administration official who asked not to be identified because he might one day argue before Roberts, observes that Roberts has changed since his White House years. He "encountered life, and life somehow changed him" into a "genuinely warm person," says this official. Still, Roberts may find that some of his old skills come in handy at his confirmation hearings. In a 1981 cover note to a Justice Department boss, entitled "Correspondence With American Jewish Committee," Roberts inquired: "Is this draft response okay--i.e., does it succeed in saying nothing at all?"