Washington – When Judge John Roberts’ nomination hearings start in the Senate this week, the women of America will be watching closely.
Roberts made a fine first impression in July, when President Bush introduced him as Justice Sandra Day O’Connor’s successor. The nominee visited with many senators. They all said nice things about each other. Then everyone went on vacation.
Everyone but reporters, bloggers and activists of various stripes, who have been poring over tens of thousands of pages of previously unexamined letters and memos and legal briefs, preparing for his confirmation hearings.
They have found another side to Roberts, in writings now posted by the National Archives on the Internet.
When it comes to women’s issues, the man slated to take over the seat of the first female Supreme Court justice at times comes across as callously caustic, placing conservative ideology above women’s interests.
In 1982, for example, the Justice Department sought to use the Title IX provisions of federal law to make the University of Richmond and other colleges give women equal access to athletics. Roberts opposed the department’s plans, and efforts by Congress to strengthen Title IX.
In a Title IX case in 1992, in which a Georgia girl sued her public schools for allowing a teacher-coach to sexually harass and abuse her, Roberts co-wrote a solicitor’s brief backing the school system’s claim that it should not be held liable for compensatory damages.
Though Roberts conceded that women then earned 59 cents for every dollar made by men, he opposed government attempts to address “the canard that women are discriminated against” in 1984. He called such “comparable worth” initiatives “staggeringly pernicious.”
There were reasons, Roberts argued, that women didn’t earn as much as men, “such as seniority, the fact that many women frequently leave the workforce for extended periods of time, etc.”
When three GOP congresswomen applauded a comparable worth decision by a Washington state court, Roberts suggested they had Marxist sympathies and wrote: “I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept.”
Roberts opposed the Equal Rights Amendment, and federal affirmative action programs.
“Under our view of the law, it is not enough to say that blacks and women have been historically discriminated against as groups and are therefore entitled to special preferences,” he wrote in 1981.
To qualify for a federal preference, Roberts argued, a woman or minority job seeker needed to prove they were “victims of specific acts of unlawful discrimination.”
Then there is abortion. Americans have mixed feelings about the practice, but there is little doubt where Roberts stands on the landmark case of Roe vs. Wade, which upheld abortion rights for women.
In 1990, when Roberts was serving the first President Bush as deputy to Solicitor General Kenneth Starr, he co-authored a brief that stated: “We continue to believe that Roe was wrongly decided and should be overruled.”
Roberts was acting as a lawyer, with a duty to argue the White House’s anti-abortion position. Because the Bush administration has declined to release his files on these and a dozen or so other cases that senators have requested, it is not possible to know if he harbored any private reservations.
But in 1981, when serving in the Reagan administration, Roberts displayed few doubts about its anti-abortion position.
In a memo to his boss, Roberts wrote a favorable review of a speech by Erwin Griswold, a former dean of Harvard Law School. Roberts approvingly noted how Griswold criticized “the so-called ‘right to privacy,’ arguing as we have that such an amorphous right is not to be found in the Constitution.”
In 2003, when testifying at his confirmation hearings for a seat on a federal appellate court, Roberts assured the Senate Judiciary Committee that Roe vs. Wade was “the settled law of the land” and that “nothing in my personal views … would prevent me” from enforcing the decision.
But if he makes it to the Supreme Court, Roberts would not be bound to uphold Roe, and could join with other conservative justices and overrule it.
Much has changed in America since Roberts labored as a brash young captain in the Reagan and first Bush administrations. As they listen to him testify this week, American women will judge whether he has changed as well, and whether they trust him to mold a future for themselves and their daughters.
They may try to decide just what Roberts meant in a joke he once made about housewives and lawyers.
When asked in 1985 if a Reagan administration official could receive an award for her professional accomplishments, Roberts wrote that the woman had “encouraged many former homemakers to enter law school and become lawyers.”
“Some might question whether encouraging homemakers to become lawyers contributes to the common good,” Roberts wrote. “But I suppose that is for the judges to decide.”
John Aloysius Farrell’s column appears each Sunday in Perspective. Comment at the Washington and the West blog (denverpost bloghouse.com/washington) or contact him at jfarrell@denverpost.com.
