Roberts Advised Justice Department on Defending Sandra Day O??¢â???¬â???¢Connor vs. HUMAN EVENTS

On Feb. 16, 1982, as a special assistant to Atty. Gen. William French Smith, Supreme Court nominee John Roberts wrote a memo providing advice on how the attorney general could deal with criticism of the Reagan Justice Department from HUMAN EVENTS, National Review, the Heritage Foundation and other conservative organizations in a speech he was scheduled to give to conservatives.

One passage in Roberts’ memo discusses how the attorney general should handle conservative criticism of Sandra Day O’Connor, whom President Reagan had named to the Supreme Court the previous year. This passage cites five separate articles in HUMAN EVENTS about O’Connor and her less-than-conservative record. Three of these HE stories specifically cited a misleading internal Justice Department memo about O’Connor that had been written by then-Justice Department official Kenneth Starr.

Roberts’ memo about how to finesse HE’s criticism was carbon-copied to Starr himself.

In a July 18, 1981, story, which Roberts footnotes in his memo, HUMAN EVENTS had reported.

“Even more serious, so far as conservatives are concerned, was the July 7, 1981, memo for the attorney general from counselor Kenneth W. Starr. The memo states that Starr talked to O’Connor by phone on two occasions on July 6, and that she ‘provided the following information with respect to her public record on family-related issues.’ But if O’Connor provided the record, it was far from complete. For instance, the memo refers to [Arizona] House Bill 20, which virtually eliminated restrictions as to when a doctor could perform an abortion. ‘There is no record of how [state] Sen. O’Connor voted,’ says the Starr memo, ‘and she indicated that she has no recollection of how she voted.’ Yet, Dr. Carolyn Gerster, the leader of the right-to-life movement in Arizona, has since forwarded to the attorney general a copy of an April 30, 1970, article in the Arizona Republic which boldly states that O’Connor voted in favor of the legislation. The Justice Department memo also completely omits from the O’Connor record her April 23, 1974, vote in the [Arizona] Senate Judiciary Committee against a resolution urging Congress to support a human life amendment to the Constitution. Why, right to lifers are asking, wasn’t this important vote in the memo? Did Mrs. O’Connor’s memory fail her, or did the Justice Department fail to include it?”

In responding to this and similar reports in HE, Roberts wrote:

“A related criticism focuses on the screening and appointment of federal judges, highlighted by the O’Connor debate. The assertion is that appointees are not ideologically committed to the President’s policies, again with particular emphasis on the social agenda. (O’Connor: Conservative Digest, August, 39-40; HUMAN EVENTS 1/30/82, 2, 18; 9/19/81, 3-4; 8/1/81, 14; 7/18/81, 5. General: Heritage Year End Report 158-159; HUMAN EVENTS 8/29/81, 4-5.)

“Here again I do not think we should respond with a ‘yes, they are’; rather we should shift the debate and briefly touch on our judicial restraint themes (for which this audience should give us some credit). It really should not matter what the personal ideology of our appointees may be, so long as they recognize that their ideology should have no role in the decisional process—i.e., so long as they believe in judicial restraint. This theme should be glossed somewhat, because of the platform, but we can make the point that much criticism of our appointees has been misdirected.” [Emphasis in original.]

The “platform” to which Roberts refers is presumably the 1980 Republican Party platform, which called for the appointment of judges “who respect traditional family values and the sanctity of innocent human life.”

Read HE articles cited by Roberts in his 1982 memo: