[Mb-civic] Roberts throws a curve - Thomas Oliphant - Boston Globe

[William Swiggard]

Roberts throws a curve

By Thomas Oliphant  |  September 15, 2005

WASHINGTON ''WELCOME to 'Night Court,' " said a smiling Democratic 
Senator Richard Durbin to a deadpan John Roberts as the confirmation 
hearings for the country's 17th chief justice droned into their 12th 
hour. It was late, but before the evening session was over there was one 
more instructive lesson into the nominee's distinguished past that ended 
up undercutting the Democrats' efforts to use inference instead of 
evidence to suggest that Roberts is an agenda-driven right-winger.

President Bush may have made no bones about his admiration for Justices 
Antonin Scalia and Clarence Thomas, offering them as his models for the 
Supreme Court. But in nominating Roberts, and off his diligent 
performance in the confirmation process, Bush has ended up disquieting 
his conservative supporters more than antagonizing progressives. The guy 
is coming off like a judge who happens to be conservative as opposed to 
a conservative judge.

The exchange with Senator Durbin of Illinois was over one of the most 
shameful episodes of the Ronald Reagan era, when there was an attempt to 
chip at the foundations of civil rights law. Early in Reagan's first 
term, in a move that deeply split the young administration, there was an 
effort to allow tax deductions for tuition paid to private schools that 
were flagrantly racist. None was more so than Bob Jones University -- 
which at the time forbade black and white students from socializing. Had 
the effort succeeded, segregation could have received a huge economic 
boost via the back door.

Reagan's move was blocked in a Supreme Court decision more than 20 years 
ago. Eight justices on a conservative court opposed. The lone dissenter, 
however, was William Rehnquist, for whom Roberts had just finished 
clerking. Moreover, Roberts moved on to Reagan's Justice Department and 
then his White House counsel's office. While he played no active role in 
the case, the young lawyer did write at least two of his famous memos on 
the subject in 1982 and 1983.

What Durbin pressed him on was the fundamental questions relevant to 
today: ''Which side were you on?" After a little fencing, Roberts said 
the Reagan administration was wrong in its attempt to help the likes of 
Bob Jones University. End of subject, end of suspicion, and once again 
Roberts had commented on a Supreme Court case from the recent past.

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/09/15/roberts_throws_a_curve/
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