DURBIN: But there was one case, one case in particular that hasn’t been mentioned today that I’d like to ask you about, and that was the case involving Bob Jones University.

That was one of the most troubling decisions of the Reagan administration. It was a decision to argue before the Supreme Court that Bob Jones University should keep its tax-exempt status with the IRS, even though it had an official policy that banned interracial dating, denied admission to any applicants who engaged in interracial marriage or were known to advocate interracial marriage or dating.

When the Reagan administration took that position, it reversed the position of three previous administrations, including two Republicans, all of whom argued that Bob Jones was not eligible for this tax-exempt status.

This sudden reversal by the Reagan Justice Department, which you were part of at the time, led to the unusual step of the Supreme Court appointing a special counsel, William Coleman, as a friend of the court, to argue in support of the IRS.

In 1983, the Supreme Court ruled 8-1 against the Reagan administration and against Bob Jones University.

Judge Roberts, there was a heated debate within the Justice Department about whether or not to defend Bob Jones University and its racist policies. More than 200 lawyers and employees of the Civil Rights Division, representing half of all the employees in that division, signed a letter of protest. William Bradford Reynolds, the head of the Civil Rights Division, strongly supported defending Bob Jones. Ted Olsen — another person well known in Washington — opposed this defense of Bob Jones.

Which side were you on? What role did you play in the decision to defend Bob Jones University policy?

ROBERTS: Senator, I was ethically barred from taking a position on that case. I was just coming off of my clerkship on the Supreme Court, which ended in the summer of 1981.

Supreme Court rules said that you could not participate in any way in a matter before the Supreme Court for a certain period of time. I think it was two years or whatever it was. And it was within that period. This involved an issue before the Supreme Court.

So I was ethically barred from participating in that in any way.

DURBIN: The memo that you wrote about the Bob Jones University position, the memo of December 5th, 1983, that summarized it, leads one to believe in reading it that you were present during deliberations on this policy. Is that true?

ROBERTS: No, Senator.

DURBIN: You were not?

ROBERTS: I was not involved in the policy because of the bar on participation.

DURBIN: There appears to be another memo, which I’m going to send to you, dated September 29th, 1982, with your handwriting in it, relative to this same issue. And I don’t want to surprise you with it. I’ll send it to you, and if tomorrow we get a chance, we can revisit it.

Let me ask you this…

SPECTER: Senator Durbin, may we have the numbers there? The staff needs those in order to track them for the record.

DURBIN: I’d be happy to. This is dated September 29th, 1982.

SPECTER: And it has a number on it?

DURBIN: No number, but we’ll give you a copy.

SPECTER: OK. Thank you.

DURBIN: We’ll share it with the judge. I want you to have — this is not a surprise, I just want you to take a look at it.

We had a nominee for the 9th Circuit Court of Appeals, Carolyn Kuhl. Do you know her personally?

ROBERTS: Yes.

DURBIN: Served in the Justice Department with her.

ROBERTS: Right.

DURBIN: When she came before this committee, Senator Leahy asked her several questions, and she said when she testified, quote, I regret having taken the position I did in support of the government’s change of position on Bob Jones. The nondiscrimination principle and the importance of enforcement of civil rights laws by the executive branch should have taken sway and should have been primary in making that decision.

I appreciated her candor on that.

What is your belief? Was the Reagan administration position on Bob Jones University the right position to take?

ROBERTS: No, Senator.

In retrospect, I think it’s clear the people who were involved in it, as you say, themselves think that it was an incorrect position. I certainly don’t disagree with that.

DURBIN: Thank you.

Let me move to another topic.

LEAHY: I’m sorry, Senator. I didn’t hear the answer.

ROBERTS: The answer is no.

I don’t think it was the correct position to take.

DURBIN: Thank you.

There is something for everyone here. It can be read variously as 1) the nominee was happy to work for an administration that curried favor with reactionary religious leaders, 2) the nominee was not sufficiently respectful of such leaders, 3) the nominee doesn’t like ingrates or 4) the nominee has a lively sense of humor.

In advance of the hearings, Judge Roberts’ conservative views and philosophy can’t be precisely defined, whether it is done by reading memos or studying his record as a lawyer and judge. It is almost as if Judge Roberts’ career path has been positioned so that one day he could fly as a stealth candidate happily under the radar. This is, of course, nothing more than suspicion and conjecture, but concern is raised by Mr. Bush’s willingness to bet the house on a Chief Justice Roberts.

Would this choice be worse than picking from two of the ultra-right justices on the bench, Justice Antonin Scalia and Justice Clarence Thomas? Probably not, but what does Mr. Bush know that the rest of us do not? That, of course, is the all-important question for these hearings. Just what sort of conservative is Judge Roberts?

Why not all four interpretations at once? And I’m not sure that Bush does know something the rest of us don’t. Roberts seems to do both top-notch work and whatever best helps his current employers/clients. What will he do when he has no employer/client to answer to? Even he probably doesn’t know.