Ethics & Public Policy Center

Gross Distortions

Published in National Review Online on July 29, 2005



From 1981 to 1982, John Roberts, fresh out of his clerkship with then-Justice Rehnquist, served as a special assistant to Attorney General William French Smith at the outset of the Reagan administration. I have reviewed the specific documents that articles in the major press have discussed from Roberts’s stint in that office. My review establishes one very alarming, but perhaps not surprising, fact: The media can’t be trusted to portray fairly Roberts’s record.

As a case in point, let’s examine this article from the Washington Post. The Post focuses on three pieces of Roberts’s work in the attorney general’s office: His analysis of efforts to divest the Supreme Court of jurisdiction to hear certain types of cases; his recommendation in a Title IX case; and his memo preparing the attorney general for a meeting with Coretta Scott King. On each, the Post’s account is sloppy and biased.

In its discussion of the debate over limiting the Court’s jurisdiction, for example, the Post declares that Roberts, in reviewing a memo by DOJ official Ted Olson, “underlined the name of one of the Republican appointees Olson listed, Justice Harry A. Blackmun, the author of Roe v. Wade, and drew an arrow connecting it to the word ‘abortion.’” How ominous! What the Post fails to make clear is that the Olson memo asserts in one sentence that the Court was more conservative than the Court that decided the “school prayer, busing, and abortion cases” and then states in the next breath that it had acquired new justices, including Blackmun, since the days of the Warren Court. Roberts’s double-headed arrow is presumably intended to highlight the incongruity of suggesting that Blackmun’s presence on the Court supports the proposition that the Court is more conservative than the Court that decided Roe.

Likewise, in discussing the memorandum that Roberts was asked to write in favor of the proposition that Congress can divest the Supreme Court of jurisdiction over categories of cases, the Post gives no hint that Roberts produced a 27-page single-spaced document that impressively addresses the text and history of the relevant constitutional provision, relevant case law, and competing arguments. Instead, the Post for some reason discusses only a single passage on a third-tier point in which Roberts presents comments at a recent conference made by then-Professor Scalia — sound the alarms again! — that refer to the “judicial excesses embodied in Roe.” Never mind that the passage cannot plausibly be read to say anything about Roberts’s views of Roe. The Roberts-Scalia-Roe linkage is enough to scare the typical Post reader.

The Post’s discussion of Roberts’s recommendation in a case involving Title IX — the treasure of the “gender equity” crowd — is no better. The Post says that Roberts “argued for a narrow interpretation of Title IX,” but somehow sees fit not to inform its readers that Roberts’s argument was based squarely on a Supreme Court case that had just been decided. In other words, Roberts wasn’t arguing for a “narrow” reading; he was arguing for a reading that was faithful to governing Supreme Court precedent.

The Post sinks even lower in its presentation of Roberts’s advice to Attorney General Smith in connection with an upcoming meeting with Coretta Scott King, widow of Martin Luther King Jr. The meeting concerned DOJ funding for a program run by King’s organization. The Post says that Roberts called the program “very poorly run” and said that it had received funding only because of “political ties” between King and a black former DOJ administrator. But Roberts expressly stated that it was a DOJ official overseeing the program who thought it was “very poorly run,” and it seems very likely from context that it was this same official who identified the “political ties.” Nothing in Roberts’s memo identifies the race of the DOJ administrator who had ties to King. That is apparently an inference that the Post reporters drew from his associations.

The Post draws a picture of Roberts’s advising the Attorney General to make false excuses about why no further funding would be available: “But rather than share those concerns bluntly with King, Roberts advised, Smith should instead tell her ‘there is simply no money available for additional funding.’” But Roberts’s memo to the attorney general in fact reads: “As you know, we have phased out the LEAA program and there simply is no money available for additional funding.” In other words, what the Post presents as a pretext advanced by Roberts was Roberts’s actual explanation to the Attorney General why no further funding could be provided.

Having disseminated these distortions, the Post is now reporting the new expressions of concern by the Left that its own distortions have helped to generate. Judge Roberts and the American people deserve better from the media.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations.

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