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After weeks of document dumps and media scrutiny of John Roberts Jr.’s copious writings, the Supreme Court nominee goes before the Senate Judiciary Committee this week with one important part of his professional life still a mystery. Roberts’ three years and three months as principal deputy solicitor general (the so-called political deputy), from 1989 to 1993, produced easily as much paper as his earlier jobs in government. But except for briefs filed with the Supreme Court, all of it�including memorandums on cases�remains sealed, to the chagrin of Democrats and groups that oppose his nomination. That part of Roberts’ life is likely to provoke questioning from Senate Democrats who are intent on seeing if the conservative views he expressed as a young Reagan White House aide burned as brightly in his psyche a decade later. “The SG materials may be the only real source that reflects his own mature personal thinking,” said Sen. Edward Kennedy (D-Mass.) in an Aug. 10 statement. Adds Nan Aron, president of Alliance for Justice, “At this point, the American people know next to nothing about the legal views Judge Roberts expressed during the most important, most influential period of his career as a lawyer.” The group announced its opposition to Roberts last week. So far, the only formal White House response has been to release a list of the Supreme Court cases Roberts handled� among them, 717 case recommendations, 77 briefs on the merits, and 31 petitions for certiorari. But the Bush administration won’t release the texts, holding to the position taken during Miguel Estrada’s bid for the U.S. Court of Appeals for the D.C. Circuit in 2002: that releasing the memos he wrote in the SG’s office would chill much-needed candor. Beyond the posturing and politics of the dispute, however, some question how valuable the documents would be, asserting that the tussle results from a gross misunderstanding of the job Roberts held under Solicitor General Kenneth Starr during the first Bush administration. The documents “still wouldn’t tell you his personal views about a case,” says Maureen Mahoney of Latham & Watkins, who served alongside Roberts as another deputy in the office. “No matter how you describe the position of political deputy, he does not have the authority to decide to file a brief requesting the Court to overrule Roe v. Wade.” Jones Day’s Donald Ayer, Roberts’ predecessor in the job, agrees, saying, “The great bulk of what you do does not have any political consequences. You are in the trenches along with everybody else.” Duke University Law School professor H. Jefferson Powell, who held the principal deputy’s job for part of the Clinton administration, says that Democrats are wasting their time. “The memos would reveal that he was pushing the positions of President Bush I,” says Powell. “That news would make me want to yawn and take a nap.” Some of the mystery and misunderstanding about the job Roberts held stems from its informal title, the “political deputy” solicitor general. That signifies only that the person filling the position is a political appointee who comes and goes with administrations, unlike the other three or four deputies in the office who are career civil servants. And it also means, in a general sense, that the person is “with the program” of the administration that hires him, as Powell puts it. Beyond that, though, the political nature of the job appears limited. Yet those who have held the job say they have had to fight the impression that they were White House moles who enforced political or ideological orthodoxy in an office that has a long-standing tradition of independence. “We thought the person with this job would be a political overseer or a political commissar, but it didn’t turn out that way,” says Andrew Frey, a Mayer Brown Rowe & Maw partner who served in the SG’s office when the position was created, a few years before Roberts arrived. The job’s creation dates back to a 1982 episode that brought rare attention to the Office of the Solicitor General. Bob Jones University was fighting an Internal Revenue Service ruling that had stripped the institution of its tax-exempt status because it did not admit blacks. When the case went before the Supreme Court, Reagan administration officials pressured the Solicitor General’s Office to support the university. Rex Lee, then the solicitor general, recused himself from the case, which meant that Lawrence Wallace, a career deputy with seniority in the office, was called on to write the brief. But there was a problem: Wallace believed the IRS position was correct and should be defended. After much negotiation, Wallace wrote the brief as requested but made it clear in a footnote that he disagreed with it. The footnote launched headlines and editorial comment for weeks, and, ultimately, the Court supported the IRS policy, 8-1. “They didn’t listen to me, and they embarrassed themselves,” says Wallace, now retired. In the aftermath of the Bob Jones debacle, Reagan officials pressed for a deputy position that would be a political appointment, so that when the solicitor general could not participate, someone else would be available to espouse the administration’s position. Lee, now deceased, resisted the idea, fearing the politicization of the office. “Rex was not enthusiastic about it,” Wallace recalls. “So he decided to use it to enrich the office by bringing in someone with distinction, not someone just with political credentials.” Lee recruited the late Harvard Law School professor Paul Bator, who is credited with creating the political deputy’s tradition as a largely nonpolitical position equivalent in most ways to that of other deputies. As with the other deputies, the solicitor general himself signs off on all the political deputy’s briefs. Roberts has argued that the job was largely apolitical and that it served to insulate the rest of the office from politics. At a 2002 conference at Brigham Young University, Roberts, then in private practice at Hogan & Hartson, said, “It promotes, rather than undermines, the traditional institutional independence of the Office of the Solicitor General.” Roberts went on to explain that when he was in the position he, rather than the career deputies, would take the angry calls from others in the administration questioning the SG’s position in a given case. “It was my job, I thought, to explain to this person that although this particular position . . . may be causing you some political heartburn, here is why we have to do it: It is compelled by our obligation to represent long-standing institutional interests of the United States.” By fielding those calls, Roberts said he protected the career attorneys in the office, who were sometimes suspected of being “holdovers” from previous administrations with different agendas. As an example, Roberts mentioned the so-called Boston Harbor case. At issue was whether Massachusetts could require union-labor-only contracts in the project to clean up Boston Harbor. Starr filed a brief agreeing that the state acted within its powers. The Association of Builders and Contractors pressured the administration to withdraw the brief, at one point threatening to oppose President George H. W. Bush’s re-election. Starr held his ground, the brief was not withdrawn, and the Court unanimously agreed with his position. Lawyers in the Solicitor General’s Office at the time confirm Roberts’ role as a buffer against political pressure. “He was certainly not viewed as a �fixer,’ ” says Mahoney. “ He was universally admired by lawyers in the office of all political persuasions.” In their document requests, Democrats have focused on a handful of cases in which Roberts signed the brief or handled the oral arguments. Two involve abortion rights: Rust v. Sullivan, a challenge to prohibitions on abortion advice at federally funded clinics, in which Roberts repeated in passing the administration position that Roe v. Wade should be overturned, and Bray v. Alexandria Women’s Health Clinic. In that case, Roberts argued in support of the position taken by militant anti-abortion protesters that the Ku Klux Klan Act of 1871 did not apply to their activities. Democrats hope Roberts’ memos on the cases might reveal more of his views, but veterans of the office say that case memos, if released, would likely contain only a handwritten sentence or two from Roberts atop what other attorneys in the office wrote analyzing the case and recommending whether the government should seek review. In a Washington Post op-ed column, former acting Solicitor General Walter Dellinger III suggested that because Roberts was a political appointee, a stronger case could be made that his memos should be made public, especially in the context of a Supreme Court nomination. But in an interview, Dellinger says he is not certain they should be released, partly because by doing so, the views of other attorneys in the office would also be revealed. He also says that, by and large, the work of the political deputy is no different from that of any other deputy. One of the petitions Roberts wrote as a deputy SG might even get him in trouble this week with a Republican. He wrote the government’s brief in O’Keefe v. Specter, a dispute over military-base closings, in which Roberts was on the opposite side of Sen. Arlen Specter (R-Pa.), who will preside over Roberts’ confirmation hearings. Specter argued the case himself in 1994. He lost, 9-0.
Tony Mauro can be contacted at [email protected].

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