Memo on Holocaust Hero Provides Taste of Roberts’s Legal Thinking

By E.J. Kessler

Published August 12, 2005, issue of August 12, 2005.
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In 1984, when Judge John G. Roberts was a young legal adviser to President Ronald Reagan, he was asked to give his view on a matter pertaining to the fate of World War II-era Swedish diplomat Raoul Wallenberg.

Wallenberg, whose efforts saved many Hungarian Jews during the Holocaust, was then thought to be held captive in a Soviet prison. A lawyer retained by Wallenberg’s family was arguing that the president, who signed a law conferring honorary citizenship on Wallenberg in 1981, should take steps to secure his release pursuant to an 1868 law regarding citizens captive abroad.

In a memo to Deputy White House Counsel Fred Fielding, Roberts wrote that he recommended a reply to the Wallenberg family’s lawyer “essentially dodging the question of the applicability” of the 1868 statute to the famed Swedish diplomat.

“Not only am I convinced that the statute does not apply to Wallenberg, but I am institutionally disposed against adopting a limited reading of a statute conferring power on the President,” Roberts wrote. He recommended that Fielding write to the lawyer noting that the honorary citizen law “was intended to be symbolic” and stressing “all that has been done by the President to promote the cause of Wallenberg,” such as raising the matter in speeches.

The 21-year-old memo, like thousands of other documents from Roberts’s past, is coming under scrutiny as lawmakers and activists pore through the Supreme Court nominee’s paper trail for any hints as to how he would rule as a justice. Among those unhappy with what they’ve seen is the Wallenberg family’s lawyer, Morris Wolff.

“It’s clear from the reaction recorded in the memo from John Roberts that the White House did everything possible to impede the release of Wallenberg at that time,” Wolff told the Forward, calling Roberts’s memo “cowardly” and “unprincipled.”

Some Jewish communal figures, however, including American Jewish Congress general counsel Marc Stern and former Reagan administration Jewish liaison Marshall Breger, approved of Roberts’s reading of the law.

The reaction to the Roberts memo comes as senators and partisans of all stripes are demanding information in search of clues to his jurisprudence. Senator Arlen Specter of Pennsylvania, chairman of the Senate Judiciary Committee and the nation’s senior Jewish Republican lawmaker, for example, wants to know how Roberts feels on questions of social policy that have been adjudicated under the Constitution’s Commerce Clause. Specter sent a letter to Roberts on August 8 expressing his concern that the Supreme Court had been denigrating Congress’s reasoning in such cases, which include some cases relating to violence against women. Some Christian conservative groups, for their part, wondered if Roberts’s pro bono work for a gay-rights group in the landmark case Romer v. Evans might mean that he “lean[s] toward homosexual rights,” as one Christian news service speculated.

Jewish partisans also have weighed in: The National Jewish Democratic Council asked, “Does John Roberts understand that freedom from government proselytizing is a fundamental right?… Does John Roberts support the bipartisan consensus in favor of racial equality in politics?” The Republican Jewish Coalition, meanwhile, seeking to show that Roberts would preserve abortion rights, noted approvingly that Roberts had stated in his federal court confirmation hearing in 2003 that “the Supreme Court’s decision in Roe [v.Wade] is binding precedent.”

So far, most Jewish communal organizations across the political and religious spectrum have not opposed Roberts’s nomination. Some, such as the Orthodox Union, never take a position on individual nominees; others, such as the Religious Action Center of Reform Judaism, do take positions but are reserving their judgment until there has been a careful vetting of the Supreme Court nominee’s record.

A notable exception is the National Council of Jewish Women, one of the strongest advocates of reproductive choice in America. The women’s council is opposing Roberts because, in the words of the organization’s national vice president, Nancy Kipnis, “Roberts’s record shows that he’s not committed to fundamental constitutional rights, including reproductive rights.”

Jewish groups did not evince much of an opinion about the recent disclosure that Roberts had done the pro bono work for the gay-rights group. “It’s hard to know the weight to give that,” said Mark Pelavin, associate director of the Reform action center.

The Wallenberg memo does not address the questions foremost in the minds of American Jews, but it does provide a rare glimpse inside the workings of the Reagan White House as it deliberated about a person who was hailed as a hero in the Jewish community for his struggle to save Jews during World War II. Ironically, the only other instance of Roberts opining on a Jewish-related matter to have come to light so far was also a “dodge.” In 1981, the Chicago Tribune reported, Roberts drafted a response to an American Jewish Congress letter expressing concern about school prayer, attaching a note to a colleague that said, “Is this draft response okay — i.e., does it succeed in saying nothing at all?” Asked to produce the letter, the AJCongress said it had been destroyed.

The AJCongress’s Stern, nonetheless, said that Roberts’s Wallenberg response was “a very good memo.”

“It reflects Roberts’s belief in a very strong presidency,” he said. “I don’t find it shocking that he’s not prepared to give an honorary citizen the same rights as a citizen.” Stern said that the memo also gives a taste of Roberts’s constitutional thinking. In arguing that the United States had an affirmative duty to free Wallenberg, Wolff cited the 1868 law which, according to Roberts, “appears to have been intended to ensure that naturalized and native-born citizens receive equal protection [when] imprisoned abroad.” Roberts took issue with the interpretation of a State Department lawyer who argued that because there were no honorary citizens in 1868 when the law was passed, it could not apply to honorary citizens such as Wallenberg.

The State Department lawyer “presumably also thinks that the Commerce Clause does not apply to air travel, that the First Amendment is irrelevant with respect to television and radio, and that the President has no authority to send ambassadors to countries that did not exist in 1787,” Roberts wrote, displaying some of the acerbic wit that has characterized the memos that have found their way into the press.

Stern said of Roberts’s interpretation, “If that [principle] applies to his constitutional thinking, it’s not an insignificant point.”

As for the substance of the matter, Avigael Tenembaum of the International Raoul Wallenberg Foundation, which raises consciousness of Wallenberg’s deeds and seeks to discover his whereabouts, was philosophical.

“Reagan at least brought it to the attention of the people,” she said, adding, “Has enough been done? Probably not, because he’s still missing.”

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