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com Judges Should Have 'Limited' Role, Roberts Says Statement to Panel Cites Need for Restraint on Bench; Prior Documents Que stion 'Right to Privacy' By Mike Allen and R Jeffrey Smith Washington Post Staff Writers Wednesday, August 3, 2005; said in a questionnaire released yesterday that he wa s first interviewed as a potential Supreme Court nominee in April and wa s questioned by Vice President Cheney in May, showing that the White Hou se had been focusing on him months before a seat came open. Roberts echoed the views of President Bush in describing his judicial phi losophy. Roberts said that he views the role of judges as "limited" and that they "do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law." Responding to a question about judicial activism, Roberts said, "When the other branches of government exceed their constitutionally-mandated lim its, the courts can act to confine them to the proper bounds. It is judi cial self-restraint, however, that confines judges to their proper const itutional responsibilities." Advocacy groups said Roberts's pledge to respect established rulings is o ne indicator of how he might approach Roe v Wade , which established a right to abortion. Nancy Keenan, president of NARAL Pro-Choice America, which supports abortion rights, said Roberts gave "lawyerly answers" and is "running a political campaign to create the appearance of open-minde dness." The 67-page statement to the Senate Judiciary Committee is the first time that Roberts, now on the US Court of Appeals for the District of Colu mbia Circuit, has commented substantively since Bush nominated him July 19. The White House did not previously disclose Cheney's role in questio ning Roberts more than two months before he met Bush. Separately, new documents released by the National Archives from Roberts' s tenure as a senior adviser to the attorney general during the Reagan a dministration make clear that he was deeply skeptical of the court's rec ognition of a citizen's fundamental "right to privacy" -- the legal conc ept that underpinned its historic 1973 decision upholding a right to abo rtion. Although the documents do not spell out Roberts's personal views on abort ion, they add to previously released documents suggesting that he had mo re in common with those who dissented from the court's reliance on "fund amental rights" than he did with the rulings of its majority. Roberts wrote in his statement to the committee that the proper exercise of the judicial role "in our constitutional system requires a degree of institutional and personal modesty and humility" and said it is "not par t of the judicial function to make the law." Roberts said he was interviewed separately by Miers on May 23. Justice Sandra Day O'Connor announced on July 1 her decision to retire. Roberts said he had a telephone interview with Miers and deputy counsel William K Kelley on July 8 and was interviewed by Bush on July 15, with Miers present. He said none questioned him about his views on a ny case or legal issue. Roberts disclosed in the questionnaire that he served on the executive co mmittee of DC Lawyers for Bush-Quayle in 1988, and was a member of the Republican National Lawyers Association from 1991 to 1994. He attached a 16-page financial disclosure report that showed assets of $6,067,000, up from the $4,052,548 he reported on his previous disclosure form, file d in 2003. The new documents disclosed by the archive that reflect Roberts' skeptica l views regarding a "fundamental" right to privacy include a lengthy art icle on judicial restraint that he apparently drafted for publication in a journal of the American Bar Association under the name of then-Attorn ey General William French Smith, his boss. The article approvingly quoted from a dissenting opinion by Justice Hugo Black in a 1965 court decision, in which the majority held that a Connec ticut law forbidding the use of contraceptives was unconstitutional. Bla ck's opinion, as cited in the draft, complained that the court had used "a loose, flexible, uncontrolled standard for holding laws unconstitutio nal." The draft article said that "the broad range of rights which are n ow alleged to be 'fundamental' by litigants, with only the most tenuous connection the to Constitution, bears ample witness to the dangers of th is doctrine." The draft released from Roberts's files at the archive does not have his name on it, but a memo to Roberts from Bruce Fein, who then worked in th e Justice Department, offers suggested changes on "your draft." Fein sai d in an interview yesterday that "my judgment is yes, that John wrote it ." A second memo, sent by Roberts to the attorney general on Dec. Griswold's lecture, Roberts said, "devotes a section to the so-ca lled 'right to privacy,' arguing as we have that such an amorphous right is not to be found in the Constitution. The words "so-called" do not appear in Griswold's lecture. But Roberts dr afted a letter to Griswold, signed by Smith, saying he was cheered that Griswold made "many of the same points" that the administration had abou t these matters. Two other new documents released by the Archives provide additional evide nce that Roberts was skeptical of government efforts to use federal fund ing as leverage to enforce civil rights in schools. In one, Roberts told the attorney general he supported the repeal of rules barring schools f rom receiving federal funds if they had discriminatory dress codes. Then -Education Secretary TH Bell successfully pushed for the change, argui ng that the regulation of dress codes was better left to local school of ficials. That, wrote Roberts in a July 1, 1982, memo, was "an eminently sound conclusion." Roberts said that although the intent of the law's drafter s was murky and the courts could conclude otherwise, "the case has not b een made" that the law applies to schools "merely because" they receive indirect aid, through grants to students. In a May 6, 1982, memo to Smith, Roberts outlined points for Smith to mak e during a scheduled interview with a Los Angeles Times reporter. Robert s advised Smith to stress that although the Justice Department continued to bring actions to "guard against impermissible discrimination," the a verage citizen is "no longer burdened by intrusive remedies which have n ot been proven to be effective." As an example, Roberts wrote: "We no longer demand busing, so disruptive to the education of our children, or quotas, which have been so divisive in the workforce."
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