Roberts opposed equal-rights initiatives

Critics seize upon writings from Reagan White House

August 19, 2005|By Naftali Bendavid and Jan C. Greenburg | Naftali Bendavid and Jan C. Greenburg,CHICAGO TRIBUNE

WASHINGTON - While serving in the Reagan White House, Supreme Court nominee John G. Roberts Jr. was skeptical of some state proposals for solving "perceived problems of gender discrimination," calling these initiatives to promote women's rights "highly objectionable," according to documents released yesterday.

With the Bush administration releasing yesterday the latest batch of documents from Roberts' government service, about 38,000 pages, the issue of women's rights is emerging as one that might cause Roberts some difficulty, critics say.

In the documents, Roberts directed much of his criticism at the controversial notion of "comparable worth," which aimed to ensure that women receive pay similar to that of men if they work in different jobs of similar worth to society.

Attacking a California measure, Roberts called it "a staggeringly pernicious law codifying the anti-capitalist notion of `comparable worth' [as opposed to market value] pay scales."

In another memo from 1983, Roberts criticized the proposed Equal Rights Amendment, describing the amendment's goal as being to "bridge the purported `gender gap.'"

If confirmed, Roberts would replace Justice Sandra Day O'Connor, the first woman on the Supreme Court. Many had expected Bush to name a woman to join Ruth Bader Ginsburg, who would now be the court's only woman; O'Connor herself expressed some disappointment in that regard.

Women's rights

Democrats still plan to grill Roberts on such issues as civil rights and abortion at his confirmation hearing beginning Sept. 6. But Democratic senators' staffers, who asked not to be named, said senators are certain to focus on women's rights during Roberts' confirmation.

The latest documents came on top of remarks from previously released Roberts memos that have sparked strong opposition from women's rights groups. Critics also point out that Roberts, later as a lawyer in private practice, has argued for narrowing the scope of Title IX, the federal statute prohibiting gender discrimination in schools that receive federal funding.

Senators from both parties are likely to try to use the hearings not only to debate Roberts' merits, but also to send a message about where the two major parties stand and to paint the other side as out of the mainstream.

Sparking criticism

Women's groups came out against Roberts quickly and forcefully. The National Organization for Women, the Feminist Majority, NARAL Pro-Choice America, the National Council of Jewish Women and the National Association of Social Workers all oppose Roberts.

Many of these groups expect Sen. Dianne Feinstein, a California Democrat and the only woman among the 18 Senate Judiciary Committee members, to take a lead on these issues. A spokesman for Feinstein did not return a call yesterday.

"I don't see Roberts' positions as conservative," said NOW President Kim Gandy. "I know a lot of conservatives who expect women to be paid fairly. ... That is not a conservative position; that is a Neanderthal position. It's unfair to conservatives to call the positions he takes conservative."

Failed policies

But one of Roberts' supporters, Douglas Kmiec, a professor at Pepperdine University School of Law and a former Reagan administration official, said the policies Roberts criticized were largely rejected as unwise by policy-makers.

Many policies, such as the notion that courts would set pay scales for men and women in different jobs, are inconceivable today, he said. "A moment's reflection will both show that most, if not all, of the proposals John Roberts was commenting on have been soundly and loudly rejected by legislatures across the country, but also should be rejected by the philosophy of gender equality that modern civil rights groups advocate," Kmiec said.

Gender gap

The mid-1980s, when Roberts was at the White House, was a "hot time for women's issues," as Gandy pointed out, largely because of a lively debate over the Equal Rights Amendment. President Ronald Reagan opposed the ERA, but as a victim of the "gender gap"- that is, significantly more women voted for rival Jimmy Carter in 1980 - Reagan was under pressure to show concern for women's issues.

In a September 1983 memo, Roberts responded to a suggestion from Donna Little, president of the Los Angeles Professional Republican Women, that Reagan propose new language for an Equal Rights Amendment because he opposed the current one.

Explaining to his boss, White House Counsel Fred Fielding, that Little "thinks this strategy would help bridge the purported `gender gap,'" Roberts added that her idea "is neither theoretically nor practically sound," because any such amendment would take power from the states and give it to the judiciary.

In another memo, from August 1984, Roberts took note of a proposal from a Reagan supporter that if then-Chief Justice Warren Burger retired, the president could make O'Connor chief justice and appoint a second woman to replace her - and "Presto! The gender gap vanishes," Roberts wrote.

"Any appointments the president makes will not be based on such crass considerations," Roberts added. "The president's strong record on women's issues - as it becomes more widely known - should suffice to close the `gender gap.'"

The Chicago Tribune is a Tribune Publishing newspaper.

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