Judge John G. Roberts, The Nominee You Know Nothing About
The Nominee You Know Nothing About
Last night, President Bush nominated D.C. Court of Appeals Judge John G. Roberts to the vacancy on the Supreme Court. Beyond his legal credentials, little else is know about whether John Roberts lies in the mainstream of legal thought and opinion. Confirmed to the D.C. Circuit Court of Appeals in June 2003, Roberts has not had enough time on the bench to signal any clear indication of what his views may be on a wide variety of issues. Knight Ridder questions, "What does Roberts think about affirmative action or gay rights? About separation of church and state or the death penalty? Legal insiders in Washington, where Roberts has spent nearly 30 years as a lawyer, government official and judge on a prestigious appeals court, respond unanimously: Who knows?" As Roberts prepares to go before the Senate for confirmation, the "threshold question," as Sen. Chuck Schumer (D-NY) has noted, is: " Will he be forthcoming in both answering questions and making available documents about his previous record?"
ROBERTS IS QUALIFIED BUT UNKNOWN: There is little doubt about whether Judge
Roberts has the experience necessary to sit on the highest court in the land. He has argued 39 cases before the Supreme Court, both as a private and government lawyer. A former law clerk to Chief Justice William Rehnquist, Roberts served as " principal deputy solicitor general under Kenneth W. Starr" in the George H.W. Bush administration and as associate counsel to President Reagan from 1982-86. But Roberts has advocated on behalf of controversial issues in the past, including on issues of reproductive rights, environmental protections, corporate interests, and civil liberties during wartime. In his Senate confirmation hearing on January 29, 2003, Roberts explained that "the positions a lawyer presents on behalf of a client should not be ascribed to that lawyer as his personal beliefs or his personal positions." Despite the fact that Roberts has " little paper trail," supporters of Bush are already ascribing their own views to Roberts, such as a " Thomas-Scalia type judicial demeanor" who will not " redefine traditional marriage" or "strike under God from the Pledge of Allegiance." It is the duty of the Senate to determine where Roberts' personal beliefs truly lie and where his views are in relation to positions he has advocated in the past.
ROBERTS' PERSONAL POSITION ON REPRODUCTIVE RIGHTS IS UNKNOWN: As deputy
solicitor general in the first Bush administration, Roberts co-wrote a brief in 1991 which argued " Roe was wrongly decided and should be overruled." He went as far as to suggest
that a right to an abortion finds " no support in the text, structure, or history of the Constitution." The position he took at the time went well beyond what was necessary to advocate his view in the case that doctors in federally-funded family planning programs should be prohibited from discussing abortions with their patients. Roberts later explained the " statement in the brief was my position as an advocate for a client" and insisted that Roe v. Wade was "the settled law of the land." Roberts added, "It's a little more than settled. It was reaffirmed in the face of a challenge ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent." In his Senate confirmation hearing, Roberts argued that a judge is "bound to follow the Supreme Court precedent, whether he agrees with it or disagrees with it... personal views, personal ideology -- those have no role to play whatsoever." That argument will no longer hold in the upcoming nomination hearings. Roberts' personal views need to be probed further to explain these contrasting positions because " as a Supreme Court justice, he would be free to overturn precedent on abortion" and related privacy rights, like the right to contraception. The question is particularly relevant given that, in the coming term, the Supreme Court will take up " the constitutionality of a New Hampshire parental notification law that lacks an emergency health exception for minors."
ROBERTS SHOULD BE QUESTIONED ON SUPREME COURT'S OVERSIGHT OF EXECUTIVE BRANCH IN WAR ON TERROR: Just last Friday, Judge Roberts ruled with two of his colleagues on the D.C. Circuit that the Bush administration's plan to convene military tribunals to try terrorist detainees at Guantanamo Bay was constitutional. Roberts overruled a lower court's opinion that the tribunals violated the Geneva Convention. In the opinion, Roberts asserted the position of the Bush administration that the Geneva Convention does not apply to the Guantanamo detainees because they belonged to no government entity. Columbia law professor Michael Dorf argued that the Roberts ruling simply assumed one of the facts that needs to be determined -- whether the detainee is in fact as "unlawful combatant." Justice Sandra Day O'Connor, the departing member of the Court whom Roberts would replace, had previously argued, " A state of war is not a blank check for the President." Roberts' ruling, according to Dorf, "extended [Bush] a very large line of credit." Because Roberts would be replacing O'Connor, whose ruling in Hamdi v. Rumsfeld gave a narrow victory to the principle of due process, it is important to probe Roberts on how much deference the President should have in conducting the war on terror.
HOW DOES HE BALANCE CORPORATE INTERESTS VERSUS RIGHTS OF WORKERS AND CONSUMERS?: The Wall Street Journal reports Bush's " business backers were cheered by the appointment of Judge Roberts." " As a private litigator, Roberts often served corporate clients, among them Toyota Motor Corp. and the American Gaming Association." In private practice, Roberts "represented Toyota at the Supreme Court, winning limits on disabled workers' claims." Roberts also argued on behalf of mining companies who wanted to use criminal contempt fees to force the end of a strike which had been ruled unlawful. Roberts' strong advocacy on behalf of corporate interests is tempered by this his representation of 19 states in a suit filed against Microsoft for antitrust violations. Roberts' understanding of the need for worker and consumer protections must be explored further in the Senate hearings.
ROBERTS RAISES CONCERNS OF ENVIRONMENTALISTS: In a 2003 case, Roberts wrote a dissenting opinion that questioned his court's precedent for upholding protections in the federal Endangered Species Act based on his position that the species in question never crossed state lines. Some environmentalists now fear that Roberts will rule that the congressional power to regulate interstate commerce does not extend to protecting species that never cross state lines, thus limiting the enforcement power of the Endangered Species Act. Roberts should explain his view of federal law-making authority.
American Progress Action Report
PAFW Press Release