The Blind Press and the Elephant Roberts

Many years ago, poet John Godfrey Saxe penned these immortal lines that all of us doubtless read in school:

And so these men of Indostan

Disputed loud and long,

Each in his own opinion

Exceeding stiff and strong,

Though each was partly in the right,

And all were in the wrong!

Saxe was referring to the Indian fable about blind men trying to describe an elephant, a beast they were encountering for the first time. Since no one could actually see the massive animal, all assumed that their touchy-feelies were the only true description.

Tuesday, we were treated to the same phenomenon, courtesy of the American press, which came up with a number of different ways to describe the true colors of John Roberts, the man who would be Mr. Justice. While all the fourth estaters seemed to agree that the Supreme Court nominee is a card-carrying conservative who advocated for positions that the right could be nothing but happy about, hardly anyone could agree on what was the most point to be made.
And based on which story your local newspaper chose to carry, you got an incomplete picture of the man who is destined to succeed Sandra Day O'Connor on the highest bench.

The Des Moines Register took the easy way out by not amalgamating a story from its numerous press services, but running just one piece: the Chicago Tribune story, which was cut to fit between the ads. The Trib chose to lead with an issue that was slightly less inflammatory than abortion or school prayer. As reporters Jan Crawford Greenberg and Naftali Bendavid wrote:

As a young lawyer in the Reagan White House, Supreme Court nominee Judge John Roberts Jr. helped shape the debate on some of the era's most controversial issues, including abortion and school prayer. And he held nothing back when analyzing the revolutionary theory of "comparable worth," a proposal to pay women the same salaries as men even when they were in different jobs.

The theory, supported by the Carter administration to achieve pay equity, was one of the more contentious labor issues of the time. . . . (Read the entire article.)

OK. A controversial issue of the time. Still, on a scale of volatility, with abortion and school prayer at the top of the scale, this has to rank as a weak "2." Does that mean there was nothing in Roberts' papers that bespoke of his taking a stand on such issues? Not at all, because farther down in their story, they write:

In a November 1985 memo to Fielding, Roberts criticized the recent Supreme Court case, Wallace vs. Jaffree, which said a moment of silence in the Alabama schools violated the Constitution because it was designed to return prayer to the classroom.

The only mention of abortion in the Tribune story is at the end, when the reporters mention that Roberts urged that the Reagan administration support an anti-abortion protest by a California group that involved a "gruesome" (his word) photograph of aborted fetuses.

But that's what led the Washington Post piece, written by Amy Goldstein and Jo Becker:

As a senior legal adviser to President Reagan, John G. Roberts Jr. concluded that a controversial memorial service for aborted fetuses, organized by a group of California doctors who opposed Roe v. Wade , was "an entirely appropriate means of calling attention to the abortion tragedy."

The words of the Supreme Court nominee, contained in a 1985 memo in which he approved a telegram from Reagan supporting the service, provide the clearest insight to date into Roberts's personal views on abortion at a time when both proponents and opponents of Roe have a keen interest in whether he would tip the court's balance on one of the nation's most volatile social issues. (Read the entire article.)

The article goes on to note that Roberts had written several memos containing the phrase "so-called 'right to privacy.' "

But there are other aspects of Roberts' position that the Post article highlights that the Tribune article does not:

The memo about the Los Angeles service for aborted fetuses is part of a pattern in the documents issued yesterday by the Ronald Reagan Presidential Library: During his tenure from 1982 to 1986 in the Reagan White House, Roberts staked out conservative positions on a broader array of issues than has previously been known.
He called a federal court decision that sought to guarantee women equal pay to men "a radical redistributive concept." He wrote that a Supreme Court case prohibiting silent prayer in public school "seems indefensible."

And he once advised two Methodist ministers how to skirt the U.S. Flag Code in order to display religious flags and insignia above the American flag, writing, "If some church gives its flag the place of prominence over the Stars and Stripes, the pastor is hardly going to be sent up the river."

The matter of equal pay is left to the jump page.

The Boston Globe led with the prayer-in-public schools matter. Charlie Savage wrote:

The Supreme Court nominee Judge John G. Roberts Jr. denounced as ''indefensible" a 1985 Supreme Court ruling striking down a moment of silence in public schools, according to memos released yesterday from his years as a legal aide in the Reagan administration.

In a memo to his supervisor, then-White House counsel Fred Fielding, Roberts said he would support a constitutional amendment allowing silent reflection in the classroom, as some conservatives in Congress had proposed in response to the Supreme Court ruling.

Roberts wrote in the 1985 memo that ''the conclusion" in that Supreme Court case, that ''the Constitution prohibits such a moment of silent reflection -- or even silent 'prayer' -- seems indefensible."

The files offered the first insight into how Roberts might rule on matters of church and state separation, should he be confirmed to the Supreme Court.

The Globe also delves into an area that has burgeoned of late: the White House powers on dealing with terrorism:

On matters of terrorism and the laws of war, in May 1985 Roberts sided with Douglas Feith, a Reagan aide who later rose to become undersecretary of defense for policy in George W. Bush's first term.

Both argued that the United States should not ratify a proposed amendment to the Geneva Convention granting insurgent groups such as the Palestine Liberation Organization the same status as official armies.

The proposed amendments ''would treat many terrorist organizations as if they were countries engaged in war, legitimizing their activities and offering them protections and courtesies that should not be extended to common criminals," Roberts wrote.

Newsday of Long Island, New York, did lead with the equal pay angle. But Tom Brune used an illuminating quote to emphasize how Roberts is far to the right of the few moderate Republicans left in Congress. Referring to Olympia Snowe of Maine, now a senator, then a House member, Brune wrote:

"I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept," [Roberts] wrote. "Their slogan may as well be 'From each according to his ability, to each according to her gender.' "

The criticism, a parody of a Marxist slogan, came in a Feb. 20, 1984, memo that Roberts wrote to his boss, White House counsel Fred Fielding.

Snowe said yesterday she hoped that 21 years later Roberts had an open mind on wage discrimination against women and that she would evaluate his views and record. (Read the entire article.)

Brune also noted that the collection of documents released wasn't in any way complete:

The records showed heavy screening by the White House, with dozens of documents withheld on claimed exemptions for national security, privacy and internal decision-making.

Just how interesting is this aspect of the documents' release was brought out by The Los Angeles Times: Reporters David G. Savage and Henry Weinstein note that Roberts has been a true believer in privacy -- when it comes to keeping White House documents away from the nosy representatives of the people:

As a young lawyer for President Reagan, John G. Roberts Jr. argued strongly that the White House should keep its internal files secret and refuse to release them to the Senate to win confirmation for a presidential nominee to a senior government post.

"We should take whatever steps are necessary to ensure the general opening of files to Hill scrutiny … does not become routine," Roberts said. "I would hope that … we would be in a better position to resist committee demands." He also denounced as "pernicious" the Presidential Records Act of 1978, in which Congress called for the future public release of files housed in a president's library.

"By 2001," Roberts wrote with alarm on Aug. 29, 1985, "Hill staffers need only go to the Reagan Library to see any internal White House deliberative document they want to see." (Read the entire article.)

And what of the Good Gray Lady? The New York Times' longtime Supreme Court reporter Linda Greenhouse decided the memos and documents were only curios, descriptive about the way we were, not about the way he is:

Only an indistinct portrait of the young John G. Roberts Jr. emerged in thousands of pages released on Monday by the National Archives from the Supreme Court nominee's years in the Reagan White House. But the documents do provide a vivid reminder of the debates that consumed official Washington in those days.

Some of the issues remain pertinent, while others are long forgotten. Anyone expecting the nearly 5,400 pages of documents, dating from late 1982 to mid-1986, to contain the key to the kind of Supreme Court justice that Judge Roberts would be is likely to be disappointed.

Whether abortion opponents should be permitted to bury thousands of fetuses in Arlington National Cemetery (no); whether a new appeals court should be created to ease the Supreme Court's workload (also no); whether the administration should endorse a new approach to raising the wages of women who work in heavily female occupations (emphatically no, with caustic commentary by Mr. Roberts) - these are only a few of the topics that documents in the files address. (Read the entire article.)

John Godfrey Saxe would have been so proud.