Friday, July 22, 2005


The Bob-Roberts Problem?

Great scoop from New York Sun's Josh Gerstein on John Roberts documents at the Reagan Library .

Only a portion of the material is available for complete public viewing. The memos Gerstein focuses on -- battles between the Reagan administration and Congress with how far civil rights laws and education federal funding should be linked -- are pretty mild and shouldn't cause Roberts much trouble.

Here, however is a bold prediction. These two passages -- individually and together -- will become central to the coming Roberts confirmation debate:

"Senate Democrats have said they will ask for full access to the records, but an archivist said the nonpublic files will be released only upon the request of the Bush administration."

If the administration holds back from releasing the full records, expect Democrats to adopt the "Bolton strategy" -- arguing that the administration is covering up material essential to assessing Roberts' thought process on critical policy issues. That approach has been ultimately successful in preventing Bolton from getting an up or down vote (i.e. not enough of the Democratic half of the "Gang of 14" have been willing to invoke cloture on the Bolton U.N. ambassador nomination). So far, the "gang" has said there is little in Roberts' background to create the "extraordinary circumstance" that would cause the Democrat members to endorse a filibuster. If the administration declines to release the full Roberts archive, could that sway them?

So, will the administration give a full release on the records? Good question. Either way, it could become significant because if they do, then, this passage may -- I repeat may, since I have no idea what's there -- hold the seeds of a major controversy:

Judge Roberts also kept a file on at least one other contentious civil rights issue, the conflict over the government's right to strip the tax exemption of Bob Jones University because of its ban on interracial dating. That file is not among those presently available for review, according to the library's listing.
I have no idea what Roberts' role was in the Bob Jones issue. However, it has always been the gift that keeps on giving for Democrats going after Republicans. It was one of the few major political stumbles of the early Reagan administration. Even Clarence Thomas, then head of the Equal Employment Opportunity Commission recognized that it was a "mistake" for the administration to argue that a private school with a history of racial discrimination -- and continued to ban interracial dating -- should be permitted to keep its tax exempt status.

Bob Jones University came back into the news five years ago when George W. Bush and other GOP presidential candidates -- including Alan Keyes -- spoke there on the campaign trail. The school continued to ban interracial dating and its founder was blatantly anti-Catholic.

More than one
conservative criticized Bush for going there and not even tacitly criticizing its policies. Indeed one asked why Bush didn't use the visit as an opportunity for a "Sister Souljah" moment, speaking to part of his base while admonishing it at the same time:

Bush could have done it all: He could have critiqued Bob Jones' policy. He could have professed his faith. He could have spoken from the heart about the special place his brother and sister-in-law occupy in the family, noting also that they are Catholic. He could have distanced his party from the shadow of bigotry that haunts it. And he could have had his own proud Sister Souljah moment.
After speaking at Bob Jones, Bush publically released a letter to an ailing New York John Cardinal O'Connor "apologizing" for the Bob Jones visit -- a move that had even some of his supporters rolling their eyes at the blatant having-your-cake-and-eating-it-too strategy: Speak at a place with a history of anti-Catholicism and then apologize to one of the more visible Catholic leaders in the country to stem any possible anger from possible Papist supporters.

So now we learn that then-Reagan counsel John Roberts had a file on Bob Jones. Where did he fall in the Reagan administration debate? Thomas, a black Reaganite -- now on the court -- criticized his colleagues at their time on their position. What was the Catholic Roberts' view?

It may turn out that there is little in the files to asses the issue. Either way though, those files could bring up awkward moments that many Republicans would rather forget -- and linking Reagan and Bush in a way that is not as flattering as the latter would like. Worse, their existence (especially if the administration tries to block their release) could give Democrats the ability to wield their other favorite anti-Republican political weapon (next to anti-choice/abortion): "racial insensitivity."

Don't underestimate the potential impact of Gerstein's story as the Roberts nomination process continues.

UPDATE (Sunday, 7/24/05, 11:00 A.M): Well, let the games begin! WH unlikely to hand over all Reagan-era Roberts documents, citing "attorney-client privelege."

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