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Roberts vote seen as critical in racial issues

Earlier writings opposed affirmative action plans

WASHINGTON -- Judge John G. Roberts Jr.'s opposition to affirmative action, outlined in internal memos he wrote 24 years ago as an aide in the Reagan administration, could provide a decisive vote to end racial preference programs across the United States if he is confirmed to the Supreme Court, observers vetting his record say.

The court is split about whether the Constitution permits the preferential treatment of certain groups to foster diversity, or to remedy historic discrimination. The last time the court dealt with affirmative action, in 2003, it voted, 5 to 4, to allow colleges to use race as a factor in evaluating applicants.

The deciding voter, and the author of the 2003 opinion that upheld the University of Michigan Law School's admissions policy, was Justice Sandra Day O'Connor. Roberts, who would replace O'Connor, wrote in 1981 that affirmative action violates ''the bedrock principle of treating people on the basis of merit without regard to race or sex."

Such a position would place Roberts in the camp of the most conservative justices, who oppose affirmative action programs. The programs aim to give advantages to applicants for college admissions, jobs, or government contracts to promote diversity or to remedy discrimination.

''It's clear that Roberts is going to be much closer to the Scalia-Thomas-Rehnquist camp in terms of issues like affirmative action than to a Justice O'Connor," said Charles Ogletree, a professor at Harvard Law School.

''This means that the Michigan case, which was decided by the narrowest of margins, is clearly a target and very vulnerable to a different outcome," Ogletree said.

Roberts's record has been hard to decipher on many contentious issues facing the court. His judicial record is limited, and his work for the Justice Department comes with some catches: The briefs he authored as deputy solicitor general expressed the views of the administration of George H. W. Bush, not necessarily his own. In private practice, he helped liberals as well as conservatives.

But a review of his Justice Department memos, and of his work on behalf of private clients, shows a pattern of skepticism about affirmative action. In a Justice Department memo dated Dec. 2, 1981, for example, Roberts attacked a policy requiring recipients of government contracts to use ''goals and timetables" to hire and promote minorities and women.

Urging the Labor Department to change to ''color and sex blindness in employment decisions," Roberts said the department should limit its affirmative action to asking employers to ''consider" a wider pool of applicants.

''Any goals or timetables should be tempered by references to hiring or promoting only the most qualified," he wrote. ''The stress should be on recruitment efforts, rather than strict hiring and promotion efforts."

'The regulations require race and sex conscious preferences, even if not strict quotas. That is what is objectionable."

Three weeks later, Roberts wrote a scathing memo about a report on affirmative action by the US Commission on Civil Rights. The report said affirmative action would have to be expanded in the 1980s to offset longstanding patterns of discrimination.

Roberts denounced the report, asserting that it had relied on ''circular logic" in an effort to push ''racial quotas."

Roberts particularly criticized a section saying ''resistance" by whites was a reason for the failure of prior affirmative action programs. A city police department had recruited minorities for its police academy, but they all failed or dropped out. The Commission on Civil Rights report concluded that white bosses had deliberately sabotaged the system by recruiting inadequately prepared candidates.

Roberts was scornful of the report, saying the real reason for the ''failure" of affirmative action programs is found in their own ''inherent flaws": ''There is no recognition of the obvious reason for failure: the affirmative action program required the recruiting of inadequately prepared candidates," he wrote.

Years later, when Roberts was a lawyer in private practice, he continued to marshal arguments against affirmative action.

In 2001, a group of construction firms hired him to write a friend-of-the-court brief arguing that Congress had failed to justify a program to help minority-owned firms in awards of contracts to build highways.

Memos and briefs such as these made it clear, many observers said, that the addition of Roberts to the court would have its most immediate impact on affirmative action. Even some of his conservative defenders, who have challenged the idea that anyone can predict how he would vote, agree that affirmative action could soon be overturned.

''I'm not predicting how John Roberts would vote, because that's only up to him," said Shannen Coffin, a former Justice Department official. ''But there is little question that [the Michigan decision] is on very shaky ground. I'm not going to predict that John Roberts is the key to it, but when there are 5-to-4 decisions in the Supreme Court on constitutional issues, those are ripe for reconsideration."

Although civil rights groups have not taken a position on Roberts's nomination, several prominent leaders have said that the memos and briefs he wrote on affirmative action have given them cause for concern.

''I am deeply disturbed," said Theodore Shaw, president of the NAACP Legal Defense Fund. ''We really were starting with the assumption that Judge Roberts was open-minded and that he wasn't on a mission when it came to the issues we care about -- civil rights. But . . . my level of discomfort is rising."

Not everyone is convinced that a Roberts confirmation would guarantee the end of racial preference programs.

Michael Rosman and Curt Levey, lawyers with the group that challenged the University of Michigan over its affirmative action policy, said Roberts or another conservative justice might buckle under intense social pressure to uphold affirmative action.

In 2003, corporate executives, law school deans, and retired military officers urged the court not to outlaw racial preferences because of the benefits of diversity.

In particular, Rosman and Levey mentioned Justice Anthony Kennedy, a Reagan appointee who sometimes breaks with conservatives on social issues, although Ogletree noted that Kennedy has voted against affirmative action in every major case that has come before the court during his tenure.

''I think we're both cynical about getting courts to do the right thing," said Levey, general counsel for the conservative Committee for Justice. ''It's one thing to just talk about this stuff, and another to have gone through the fight for years and been continually surprised when courts lean towards political correctness."

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