How Roberts Set A Collision Course With Maine’s Snowe
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
WASHINGTON – As a White House lawyer two decades ago, President Bush’s nominee for the Supreme Court, Judge John Roberts Jr., skewered three Republican congresswomen for their support of government efforts to guarantee that women were paid equally for work deemed of “comparable worth” to that done by men, according to records released yesterday.
In a scenario the brash young attorney could hardly have imagined at the time, one of the women he tartly dismissed in the internal memo, Senator Snowe of Maine, now has a vote on his nomination to the highest court in the land.
“It is difficult to exaggerate the perniciousness of the comparable worth theory,” Judge Roberts wrote to his boss, Fred Fielding, the White House counsel, on February 3, 1984. “It mandates nothing less than central planning of the economy by judges.”
“I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept,” Judge Roberts wrote to Mr. Fielding a few weeks later, on February 20.
Judge Roberts, who was 29 at the time, even suggested the congresswomen, Ms. Snowe, Rep. Nancy Johnson of Connecticut, and Claudine Schneider of Rhode Island, might be Marxists. “Their slogan may as well be ‘From each according to his ability, to each according to her gender,'” Judge Roberts quipped.
The women lawmakers had written to President Reagan’s deputy chief of staff, Michael Deaver, urging the administration to stay out of a court case that led a federal judge in Seattle to order Washington state to pay 15,000 women a total of up to $500 million in compensation because they had consistently received about 20% less in pay for jobs deemed to be of comparable worth.
The “Republican female representatives,” as Judge Roberts referred to them, appeared to win that round. The Reagan administration made clear its opposition to the concept of government-determined “comparable worth” but decided to stay out of the court fray. The following year, a federal appeals court reversed the lower court’s decision.
Ms. Snowe reacted cautiously yesterday to the news that Judge Roberts summarily dismissed her stance in the pay equity debate. “I understand the 1984 memo authored by John Roberts – one of 5,000 documents released by the Administration today – demonstrates that he and I had a difference of opinion on how to legally approach the matter of valuing women’s contributions in the workforce,” the senator said in a circumspect prepared statement. “Hopefully, 21 years later, Judge Roberts possesses an openness with respect to issues of gender-based wage discrimination,” she said, adding that she considers the issue “critical.”
Ms. Johnson’s office offered a more pithy rebuttal to the nominee’s memo. “We don’t think equal pay for equal work is a radical concept,” said a spokesman for the congresswoman, Brian Schubert. “Women and men doing comparable work should be paid fairly and equally.”
The documents released yesterday from the files of the Reagan Library in California came as the Bush administration works to meet an August 22 target date to provide about 45,000 additional pages relating to Judge Roberts. Nomination hearings are scheduled to get underway on September 6.
The newly disclosed records reflect that Mr. Fielding and others regularly turned to Judge Roberts, a former law clerk to Chief Justice Rehnquist, for analysis and talking points on Supreme Court decisions and constitutional issues. In a November 21, 1985, memo, the future nominee critiqued a Supreme Court decision striking down an Alabama law that mandated a one minute period of silence in public school classrooms each day for meditation or prayer.
“The conclusion … that the Constitution prohibits such a moment of silent reflection – or even ‘silent prayer’ – seems indefensible,” Judge Roberts wrote, recommending that the administration support a proposed constitutional amendment to overturn the Supreme Court’s ruling.
In another memo, Judge Roberts appears to express the view that students should be permitted to engage in organized prayer in public schools. “We still have an uphill battle to return prayer to the schools,” he said. The same document also contains his highly sophisticated reading of the court’s splintered decision in the 1985 moment-of-silence case, Wallace v. Jaffree.
“As I see it, Rehnquist took a tenuous five-person majority and tried to revolutionize Establishment Clause jurisprudence, and ended up losing the majority,” Judge Roberts wrote, adding, “Which is not to say the effort is misguided.”
Some advocates of strict church state separation have already announced opposition to the nomination of Judge Roberts on the grounds that he is likely to attempt to upset the Supreme Court’s stance on such issues.
The records released yesterday also show that while he was at the White House, Judge Roberts was involved in a caustic exchange of correspondence between a former senator from New York, Daniel Patrick Moynihan, and the White House counsel, Mr. Fielding. Moynihan, a Democrat, was irate with the White House after Reagan passed over a potential nominee to the federal bench, William Hellerstein.
Under a somewhat unusual arrangement with the state’s other senator, Moynihan was allowed to recommend to Reagan a candidate for every fourth federal judicial vacancy in New York. For one such slot, Moynihan chose Mr. Hellerstein, a former public defender who is now a professor at Brooklyn Law School.
After learning from press accounts that Mr. Hellerstein would not be nominated, Moynihan sent Mr. Fielding a letter accusing him of “corruption” and of imposing “a political test for Federal judges of an order so extreme as to be without precedent and altogether without warrant.” The letter quickly made its way to the press.
In an acid reply apparently drafted by Judge Roberts, Mr. Fielding was unsparing. “If you seriously think the Administration is guilty of ‘corruption’ because the President will not nominate the attorney of your choice to fill a vacancy on the Federal bench, a reply is probably futile; you would seem to be beyond the bounds of constructive dialogue,” the letter said. Mr. Fielding went on to say he would not be deterred “by someone bandying words like ‘corruption’ with the skill of a practiced demagaogue.”
Additional releases from the Reagan Library are expected in the coming days, but the Bush administration continues to refuse to release memos Judge Roberts wrote during his tenure as deputy solicitor general under President George H. W. Bush. However, the administration may have blurred the line a bit yesterday by disclosing a 1983 memo from a top Justice Department lawyer to the solicitor general about an age discrimination case involving a religious college. A copy of the document ended up in Judge Roberts’s White House files. White House lawyers apparently considered withholding that memo, but at the last minute they opted against such a course.
In a statement yesterday, Senator Schumer offered qualified praise for the White House’s disclosures: “The White House is releasing these documents in a timely and fair way, but I sincerely hope they reconsider releasing the Solicitor General documents in the same manner because they would shed much more light on what kind of Supreme Court Justice Judge Roberts would be.”