Tuesday, July 19, 2005

Salon on the Nomination of John Roberts

John Roberts: The early read

What do we know about John Roberts, the 50-year-old D.C. Circuit judge George W. Bush has chosen as his nominee to replace Sandra Day O'Connor?

We start with the basics. He's a Harvard Law School graduate with solid Republican credentials. He clerked for Henry Friendly and for William Rehnquist, and he worked as associate counsel to Ronald Reagan and as deputy solicitor general for George H.W. Bush around stints in private practice Hogan & Hartson. The former president nominated Roberts to a spot on the D.C. Circuit in 1992, but his nomination died when Bill Clinton was elected president. George W. Bush tried again in 2001. Roberts was eventually confirmed by the Senate on a voice vote in 2003.

Roberts' record as an advocate for Republican judges offers plenty of low-hanging fruit for partisans on both sides of the aisle. While the right is already praising Roberts as a solid conservative pick, progressive groups like the Alliance for Justice have argued in the past that Roberts has shown a "record of hostility to the rights of women and minorities." Arguing on behalf of the government for a roll back of abortion rights, Roberts has stated that there is "no support in the text, structure or history of the Constitution" for Roe v. Wade. Roberts wrote the government's brief in Rust v. Sullivan, the 1991 case in which the Supreme Court held that government could prohibit doctors and clinics who receive federal funds from discussing abortion with their patients. In his brief, Roberts said: "We continue to believe that Roe v. Wade was wrongly decided and should be overruled."

In other cases -- sometimes as an advocate for the government, sometimes as a lawyer in private practice -- Roberts argued that the Supreme Court should invalidate a federal affirmative action program; that the Constitution permits religious ceremonies at public high school graduations; and that environmental groups lacked the right to sue under the Endangered Species Act.

In his confirmation hearings, Roberts will surely draw a distinction between his work as an advocate on behalf of clients and his work as a judge; Alberto Gonzales made the same argument when he tried to distance himself from some of the less savory aspects of his tenure as White House counsel when Bush nominated him to serve as attorney general.

But there are at least some signs that Roberts the judge isn't all that different from Roberts the lawyer. Although Roberts has sat on the D.C. Circuit for only two years, he has, in that short period of time, joined in a series of pro-prosecution criminal decisions; rejected a civil rights lawsuit by a young girl who was arrested, handcuffed and hauled off to jail "all for," as he put it, "eating a single French fry in a Metrorail station"; and concurred in a decision that prohibited veterans of the first Gulf War from suing Iraq during the country's reconstruction.

Progressive groups will line up quickly against Roberts' nomination, and the process has already begun. In a statement just emailed to reporters, NARAL-Pro Choice America President Nancy Keenan said that her group will oppose the nomination. "We are extremely disappointed that President Bush has chosen such a divisive nominee for the highest court in the nation, rather than a consensus nominee who would protect individual liberty and uphold Roe v. Wade," Keenan said. "President Bush has consciously chosen the path of confrontation."


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