President Bush announced on Tuesday night that he was nominating Judge John G. Roberts, Jr., of the U.S. Court of Appeals for the District of Columbia Circuit, as his choice to replace retiring Justice Sandra Day O'Connor on the U.S. Supreme Court.
"So far, he is a puzzle to me," noted prominent First Amendment attorney and AVN legal columnist Clyde DeWitt. "None of the 42 published opinions he authored while on the D.C. Court of Appeals has involved the First Amendment. As expected, he appears to approve of a strong executive branch of government, but it is difficult to read him from what little he has written as a judge."
Roberts has been on the D.C. Circuit for just two years. Before that, he was in private practice at a prominent D.C. law firm, and in that capacity argued 39 cases before the high court.
"After he was nominated for the Court of Appeals in 2001," Bush said, "a bipartisan group of more than 150 lawyers sent a letter to the Senate Judiciary Committee. They wrote, 'Although as individuals we reflect a wide spectrum of political party affiliation and ideology, we are united in our belief that John Roberts will be an outstanding federal court appeals judge and should be confirmed by the United States Senate.'"
That statement sidesteps the actual controversy behind Roberts' original nomination.
"One of the most egregious abuses of power occurred on Thursday, Feb. 27, [2003] when [Sen. Orrin] Hatch violated clear and explicit Judiciary Committee rules that prevent the Committee from moving to a final vote on any matter before the committee without the support of at least one member of the minority party," wrote Ralph Neas, president of People For The American Way. "Over the strenuous objections of several Democratic Senators, Hatch insisted that the rule did not apply to nominations – a specious claim that had never been made before – and that he would call for a final vote on appeals court nominees Deborah Cook and John Roberts, even though no Democrats supported the motion to bring them to a vote."
"In spite of objections from Sen. Patrick Leahy and others, Hatch called the roll for votes on nominees Deborah Cook and John Roberts even though Democrats were calling for additional hearings on their nominations."
At Roberts' final confirmation hearing, many Democratic senators either passed their vote or voted simply "present" to protest the fact that Roberts' views on major issues had not been allowed to be examined in the nomination process.
"My decision to nominate Judge Roberts to the Supreme Court came after a thorough and deliberative process," Bush said at tonight's ceremony. "My staff and I consulted with more than 70 members of the United States Senate. I received good advice from both Republicans and Democrats. I appreciate the care they took; I'm grateful for their advice. I reviewed the credentials of many well-qualified men and women. I met personally with a number of potential nominees. At my meetings with Judge Roberts, I have been deeply impressed."
"Under the Constitution, Judge Roberts now goes before the United States Senate for confirmation," Bush continued. "I've recently spoken with leaders Sen. Frist and Sen. Reid and with senior members of the Judiciary Committee, Chairman Specter and Sen. Leahy. These senators share my goal of a dignified confirmation process that is conducted with fairness and civility. The appointments of the two most recent justices to the Supreme Court prove that this confirmation can be done in a timely manner, so I have full confidence that the Senate will rise to the occasion and act promptly on this nomination. It is important that the newest justice be on the bench when the Supreme Court reconvenes in October."
One thing that may delay Roberts' approval – and it's hardly surprising – is that little is known about Roberts. The White House has had more than eight months since the announcement of Chief Justice Rehnquist's affliction with thyroid cancer to start the search for his replacement, although circumstances have skewed those choices into a lesser Supreme Court role. In fact, it is not inconceivable that the administration encouraged Justice O'Connor, whom it knew had wanted off the court for several years, to resign before Rehnquist in order to test, among other things, the Democrats' resolve to filibuster a hard reactionary nominee, and in general to see what tactics the Democrats would employ in its "advise and consent" process.
But the administration has learned its lesson from its battles over President Bush's nominees for federal district and appeals court positions. Several nominees were threatened with filibuster by Senate Democrats because the Dems took issue with some of the official positions held by the nominees, often as reflected in their prior judicial opinions. The nomination of John Bolton as United Nations delegate was held up for similar reasons. Hence, there is little doubt that one of the criteria for choosing Roberts as the Supreme Court nominee was the fact that he has a short "white-bread" paper trail which opponents of the nominee would use, if they could, to impeach his credibility.
"He's a man of extraordinary accomplishment and ability," Bush said. "He has a good heart. He has the qualities Americans expect in a judge: Experience, wisdom, fairness and civility. He has profound respect for the rule of law and for the liberties guaranteed to every citizen. He will strictly apply the Constitution and laws, not legislate from the bench. He's also a man of character who loves his country and his family."
But Roberts' public record is not entirely clean. As a law student, he clerked for Chief Justice Rehnquist, and in an article on law.com, Legal Times reporter Tony Mauro described Roberts as "a reliable conservative who can be counted on to undermine if not immediately overturn liberal landmarks like abortion rights and affirmative action."
Roberts is a member of the ultra-conservative Federalist Society, and worked in the White Counsel's office under both Presidents Ronald Reagan and George H.W. Bush. Wrote Mauro, "'He is as conservative as you can get,' one friend puts it."
Roberts has a troubling ruling or two behind him. In a ruling last October in Hedgepeth v. WMATA, Roberts upheld the arrest, handcuffing and detention of a 12-year-old girl for eating a single french fry inside a D.C. Metrorail station. "No one is very happy about the events that led to this litigation," Roberts acknowledged in the decision, but he ruled that nothing the police did violated the girl's Fourth Amendment or Fifth Amendment rights.
However, Roberts was one of the dissenters in the D.C. Circuit's 5-3 denial of a petition for rehearing en banc filed by the Bush Administration in its efforts to avoid releasing records pertaining to Vice President Cheney's energy task force – a good sign. The ruling came in litigation brought by Judicial Watch and the Sierra Club, charging that the Vice President's task force had violated federal law by not making its records public. Earlier this year, the Supreme Court upheld Cheney's claimed right of privacy.
According to a report from the group Alliance For Justice, in two cases as Assistant Solicitor General during the Bush I administration, Roberts took positions hostile to women's reproductive rights. He was a co-author of the government's brief in Rust v. Sullivan, the case in which the Supreme Court upheld newly revised Title X regulations that prohibited U.S. family planning programs receiving federal aid from giving any abortion-related counseling or other services. The provision barred such clinics not only from providing abortions, but also from "counseling clients about abortion" or even "referring them to facilities that provide abortions." Roberts' brief argued that the regulation gagging the government-financed programs was necessary to fulfill Congress' intent not to fund abortions through these programs, despite the fact that several members of Congress, including sponsors of the amendment dealing with abortion, disavowed this position and that the Department of Health and Human Services' had not previously interpreted the provision in such a rigid and restrictive manner. Moreover, Roberts argued, even though the case did not implicate Roe v. Wade, that "[w]e continue to believe that Roe was wrongly decided and should be overruled... The Court's conclusion in Roe that there is a fundamental right to an abortion... finds no support in the text, structure, or history of the Constitution."
In a second abortion-related case, Roberts co-authored the government's amicus brief in a private suit brought against Operation Rescue by an abortion clinic it had targeted. The brief argued that Operation Rescue was not engaged in a conspiracy to deprive women of equal protection. Roberts took this position in spite of Operation Rescue's admission that its goal was to prevent women from obtaining abortions and to shut down the clinic during its protests.
Regarding the First Amendment, Roberts co-authored two briefs arguing for an expanded role for religion in public schools. In one case, he co-authored a government amicus curiae brief before the Supreme Court, in which he argued that public high schools should be allowed to conduct religious ceremonies as part of a graduation program, a position rejected by the Supreme Court. In the other, the government argued that barring a religious group from meeting on school grounds violates the Equal Access Act, while granting access does not violate the Establishment Clause. The Supreme Court agreed with the government's position.
Roberts also co-authored a brief arguing that the 1989 Flag Act did not violate the First Amendment. Two Americans had been prosecuted for burning the U.S. flag in violation of the Act, but both charges were dismissed on the grounds that the law violated the First Amendment right to freedom of speech. The government's brief argued for the Court to treat flag burning like "obscene words" and "defamatory statements" and allow the government to ban it for the common good, but the Supreme Court disagreed 5-4, holding the statute unconstitutional. Roberts' phraseology in the brief strongly suggests that he has little respect for sexual speech.
Speaking briefly after Bush finished his remarks, Roberts acknowledged the help of his family in helping him attain the position he holds, noting that they "remind me every day why it is so important for us to work to preserve the institutions of our democracy."
But there is little doubt that Roberts has been thoroughly vetted as to his/her positions on the issues most important to the administration and its supporters: Opposition to abortion availability; favoritism to businesses and corporations over individuals; support of government power to diminish (if not erase) civil liberties; support for the administration's policies in the prosecution of the war in Iraq and its treatment of the prisoners of war which it terms "enemy combatants"; opposition to equality for gays; and, of course, support for the war on free speech and free press.
"Nobody expected anyone favorable, but we clearly could have done much worse with some of the names that had been floating around," DeWitt noted. "And, having said that, given what happened with Justices O'Connor, Kennedy and Souter – all of whom disappointed the Reagan and Bush I administrations, which expected their nominees all to be quite conservative – I'm sure this administration has done some serious homework on this nominee.
"The confirmation hearings will be interesting."
Political insiders understand that the reason the nominee is being announced today is an effort to draw the mainstream media's attention away from the scandal surrounding National Security Advisor Karl Rove's outing of CIA operative Valerie Plame to at least two reporters, Robert Novak and Matthew Cooper. Over the past few days, journalists have been confronting White House Press Secretary Scott McClellan with McClellan's previous assurances that Rove was completely uninvolved in the Plame matter, which assurances have proven to be false. Over the weekend, the specifics of Cooper's original reporting notes have been released, which show that at the very least, Rove confirmed Plame's identity to Cooper – an action which is likely a federal felony. Moreover, the hypocrisy of President Bush himself is now national news fodder, since he had previously indicated that he would fire any of his staff who were found to be involved in the Plame outing, but recently changed his stance to one where he said he would fire such a person only if that person were convicted of the crime of outing Plame.
Whether the media will take the bait and switch the focus to Roberts' nomination remains to be seen.
Thanks to attorney Lawrence G. Walters for providing some of the above information.
