Files show Roberts' views on women's issues in '80s

WASHINGTON — Supreme Court nominee John Roberts consistently opposed legal and legislative attempts to strengthen women's rights during his years as a legal adviser in the Reagan White House in the 1980s, disparaging what he called "the purported gender gap" and, at one point, questioning "whether encouraging homemakers to become lawyers contributes to the common good."

In internal memos, Roberts urged President Reagan to refrain from embracing any form of the Equal Rights Amendment pending in Congress. He concluded that some state initiatives to curb workplace discrimination against women relied on legal tools that were "highly objectionable." And he said a controversial legal theory in vogue at the time — of directing employers to pay women equally to men for jobs of "comparable worth" — was "staggeringly pernicious" and "anti-capitalist."

Roberts' thoughts on what he called "perceived problems" of gender bias are contained in a vast batch of documents released yesterday, providing the clearest, most detailed mosaic that has emerged so far of the political views he has held on dozens of social and legal issues. Senators have said they plan to mine his past views on topics that could come before the high court when he begins confirmation hearings Sept. 6.

Following several, smaller batches of old files that have been released in the four weeks since President Bush chose Roberts — who already faces opposition from many women's groups — to fill the first Supreme Court vacancy in 11 years, the new collection of about 38,000 documents has particular political significance, because of both their content and their timing.

Yesterday's deluge of papers, held in the Ronald Reagan Presidential Library in California, is likely to be the last major set of written material from Roberts' past to become public before his confirmation hearings. Senate Democrats have been pressing the Bush administration to release Roberts' files from the highest-ranking position he has held in the executive branch, as the Justice Department's deputy solicitor general from 1989 to 1993 under President George H.W. Bush. But administration officials have asserted that those records should remain private on grounds of attorney-client privilege.

Covering a period from 1982 to 1986, his tenure as associate counsel to Reagan, the documents released yesterday show that Roberts endorsed a speech attacking "four decades of misguided" Supreme Court decisions on the role of religion in public life, urged the president against saying AIDS could not be transmitted through casual contact until more research was done, and argued that promotions and firings in the workplace should be based entirely on merit, not affirmative-action programs.

Previously released documents, from slightly earlier during the Reagan era when Roberts was a special assistant to Attorney General William French Smith, have established that the young attorney was immersed in leading civil-rights issues of the time, including school desegregation, voting rights and bias in hiring and housing. The new batch provides the most extensive insight into Roberts' views of efforts to expand opportunity for women in the workplace and higher education.

His remark on whether homemakers should become lawyers came in 1985 in reply to a suggestion from Linda Chavez, then the White House's director of public liaison. Chavez had proposed to enter her deputy, Linda Arey, in a contest sponsored by the Clairol shampoo company to honor women who had changed their lives after age 30. Arey had been a schoolteacher who decided to change careers and went to law school.

In a July 31 memo, Roberts noted that, as an assistant dean at the University of Richmond law school before she joined the Reagan administration, Arey had "encouraged many former homemakers to enter law school and become lawyers." Roberts said in his memo that he saw no legal objection to her taking part in the Clairol contest. Then he added a personal aside: "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide."

Roberts' writing about homemakers startled women across the ideological spectrum. Phyllis Schlafly, president of the conservative Eagle Forum who entered law school when she was 51, said, "It kind of sounds like a smart-alecky comment" and noted that Roberts was "a young bachelor and hadn't seen a whole lot of life at that point ...

"I don't think that disqualifies him. I think he got married to a feminist; he's learned a lot."

Roberts' wife, Jane, is also a lawyer.

Kim Gandy, president of the liberal National Organization for Women, which already has opposed Roberts, reacted more harshly. "Oh. Wow. Good heavens," she said. "I find it quite shocking that a young lawyer, as he was at the time, had such Neanderthal ideas about women's place."

The White House defended its nominee. "It's pretty clear from the more than 60,000 pages of documents that have been released that John Roberts has a great sense of humor," said Steve Schmidt, a spokesman for Bush. "In this memo, he offers a lawyer joke."

The comments disclosed yesterday came on top of remarks from previously released Roberts memos that have sparked strong opposition from women's-rights groups, including NOW, the Feminist Majority, NARAL Pro-Choice America and the National Council of Jewish Women.

In contrast, civil-rights groups are likely to oppose Roberts but for now are moving cautiously.

Most conservative groups support Roberts' nomination, although one group, Public Advocate of the United States, withdrew its support last week because of Roberts' work helping to overturn a Colorado referendum on gay rights.

On other matters involving women's rights, Roberts in 1983 criticized a report that praised states' progress in combating sex discrimination in the workplace, which had been endorsed by then-Transportation Secretary Elizabeth Dole. In a Jan 17 memo to his boss, White House Counsel Fred Fielding, Roberts wrote that "many of the reported proposals and efforts are themselves highly objectionable." Roberts singled out three ideas for particular criticism:

• A California law requiring that employers take into account affirmative action, in addition to seniority, when laying off workers

• Another California proposal to require that women receive pay equal to men for state jobs of comparable worth, comparing jobs across departments rather than in one area

• And a Florida proposal to charge women lower tuition than men at state colleges because their earning power was lower.

He wrote that it was "imperative that the report make clear ... that the inventory is just that and that proposals appearing in it are not necessarily supported by the administration."

Roberts wrote at times in a flippant tone. In a Sept. 30, 1983, memo, regarding an upcoming presidential interview with the newspaper Spanish Today, Roberts suggested that the president mention his support for legalizing certain undocumented immigrants.

"I think this audience would be pleased that we are trying to grant legal status to their illegal amigos," Roberts wrote.

In another document that same year, Roberts acidly dismissed an anti-crime proposal from Sen. Arlen Specter, R-Pa., as "the epitome of the 'throw money at the problem' approach ... ."

Specter now chairs the Judiciary Committee that will oversee Roberts' confirmation.

Material from the Chicago Tribune and The Seattle Times archive is included in this report.