"Sterling" judge or "extreme rightist"?

Activists and scholars size up Bush's Supreme Court nominee.

Published July 20, 2005 8:00AM (EDT)

Ron Daniels, executive director, Center for Constitutional Rights

President Bush had the opportunity to choose a real moderate in the mold of Sandra Day O'Connor, but for those of us who are coming from the liberal, progressive side, he has not made a good choice. Instead, he faked a lot of us out: The report came earlier in the day that his pick was Edith Clement, who is a more moderate judge like O'Connor, and then at the end of the day it became clear that he'd chosen Roberts, who seems likely to be more of a [Clarence] Thomas or [Antonin] Scalia.

Roberts represents the administration's attempt to sneak by with a stealth nominee, a person without a paper trail. In his announcement of the nomination, President Bush was very careful to say that Roberts will strictly interpret the Constitution. That's his indication to far-right groups that this judge won't "legislate from the bench," and will go their way on issues like civil liberties, the environment, women's rights, and rights for lesbians and gay people.

Now, in some ways, it could have been worse. If the nominee had been someone even more extreme, like a Janice Rogers Brown or a [William] Pryor, I would be to the point of discussing civil disobedience in response to the nomination. Roberts has the advantage of having been confirmed by the Senate before, and he does seem to be less extreme.

But in his time in the district court, Roberts hasn't written a single opinion. So in many ways, it's premature to speculate as to how his confirmation could affect the balance of the court. I'm sure that his private practice, and any essays that he's written, will come under a great deal of scrutiny, and maybe something will emerge in his history that will help us to pin him down. But in his confirmation hearing, he's likely to be very general, not answer questions specifically; I don't think we'll be able to find out much more about his views. In some ways this is smart move by the Bush administration, because it may take several years before we know what kind of justice Roberts will be.

Brian C. Anderson, senior editor of City Journal, the Manhattan Institute

In my view, John Roberts is one of the two or three best picks Bush could have made: He has a sterling reputation for legal reasoning and fairness; he is experienced; he is reportedly well-liked by current members of the court; he's young; and -- most important from a conservative standpoint -- he's the antithesis of a judicial activist. I think he would be a justice in the mold of Clarence Thomas and will not read into the Constitution things that aren't there -- gay marriage, a right to partial-birth abortion, etc.

It's hard to see how Roberts would not be confirmed, unless there is moral turpitude in the picture, which presumably there isn't. Though Democrats will object ferociously to the nomination, it's a very different media universe from the days when Bork was being Borked: Blogs, talk radio, and cable news all provide outlets for the right to counter what will be negative treatment in the media mainstream. And, of course, Republicans control Congress.

Kim Gandy, president, National Organization for Women

Obviously we were very disappointed. We hoped that Bush would replace Sandra Day O'Connor with a moderate conservative who would not tarnish her legacy on the court. We're obviously disappointed that he's chosen an ideologue. He certainly had many opportunities to choose someone who would have united the Senate and for whom the confirmation would have been simple.

I think he was spoiling for a fight with a nominee who would move Karl Rove off the front page. I think George Bush is looking for a fight and I think he's going to get one. I think the Senate will look at [Roberts] thoroughly, but the Senate has already looked at him, during the appeals process. Still, they will much be more stringent at the Supreme Court level. Because when you're an appellate judge you don't get to make the law, but when you're on the Supreme Court you do.

There are many areas where Sandra Day O'Connor had been the deciding vote: on women's rights, on civil rights, on the rights to privacy. Roberts is far more likely, from our reading, to line up with Scalia and Thomas and [William] Rehnquist on those issues, thereby changing nearly every single one of those issues if they were to come before the court again, which they certainly would. Roberts has said, even in one case where Roe v. Wade wasn't even an issue, that Roe was wrong and should be overruled. He just gratuitously threw that in.

I think it means women's rights to abortion and even our right to birth control in some states would be in imminent jeopardy -- he's an active opponent.

Barry W. Lynn, executive director, Americans United for Separation of Church and State

The Bush administration believes it has a mandate to move the country's highest court sharply to the right. He is seeking to replace a moderate swing vote on the high court with a young attorney who has a strong far-right ideological bent.

As a deputy solicitor general, Roberts argued for the federal government that school-organized prayer at graduation ceremonies was permissible. He has also indicated, on behalf of the federal government, that privacy rights, and in particular reproductive rights, should be curtailed.

It appears that the current political climate -- the president's plunging poll numbers and his closest advisor embroiled in controversy -- did not temper his zeal to drag this nation rightward. The president seems only to care for his extreme right-wing followers.

If confirmed, I'm afraid, John G. Roberts will join with the high court's most extreme rightists in their ongoing attempts to curtail civil liberties.

Mark Moller, senior fellow in constitutional studies, Cato Institute; editor in chief of Cato's Supreme Court Review

What do we know about John Roberts? Not much. Yes, Roberts is one of the most highly respected lawyers of his generation. He has also spent vanishingly little time on the bench. Is it too early for pundits of all stripes to take a dose of humility and admit the obvious? We have no idea what kind of a justice he will be.

What we can admit are a few stubborn, disheartening facts about the coming Supreme Court fight. The first is that it's not likely to be reasoned or accurate. Call it the dismal economics of Supreme Court nominations. Interest groups dedicated to fighting a Bush nominee have amassed a huge war chest -- over $50 million, according to some estimates. That money will be spent. No matter how fine a nominee Roberts may be, the money won't be spent on peaceful bipartisan praise. To paraphrase Kevin Costner, when a president nominates a justice, the doomsayers will come -- whether doom is on the horizon or not.

Second, Roe v. Wade isn't in jeopardy. There are still five solid votes for the Roe line of cases (Stevens, Breyer, Ginsburg, Souter and Kennedy). Even if another justice retires, many court experts -- like Ted Olson, Bush's own former solicitor general -- think a judicially enforced right to abortion is not in any serious danger. Abortion is a distraction, but it is an inevitable one.

Third, don't hold your breath hoping that any senators, Democratic or Republican, will ask Roberts the $64,000 question: namely, whether he is committed to maintaining the Supreme Court as a countermajoritarian institution, one that won't kowtow to the whims of electoral majorities, "liberal" or "conservative." That would suggest, against the weight of abundant contrary evidence, that our political establishment cares about preserving the Supreme Court as a check on its appetites.

Roberta Combs, president, Christian Coalition of America

I think that the president did tonight what he said what he was going to do when he was campaigning. I'm happy that the president kept his word. He said he was going to nominate someone who would faithfully interpret the Constitution.

This was a bipartisan effort. Even Joe Lieberman made the comment that John Roberts would be right in the ballpark. I think the "Gang of 14" should be happy. They got together and they were easy to please. The [Democrats] said they wouldn't filibuster.

Roberts has a distinguished résumé. He was on the D.C. appellate court. He was nominated and voted on by everyone in the Senate. I think it's a very smart move on the president's part.

As far as Roe vs. Wade goes, I'm not going to get into that. The president said he wasn't going to have a litmus test. Right now I think Roberts has to go through the hearings. I don't think he'll have to answer all those questions. When Ruth Bader Ginsburg was nominated, Joe Biden said she didn't have to answer those kinds of questions. We're going to let Roberts go through the process.

I don't think he's going to have a problem. He's already been confirmed when he was nominated or the D.C. appellate court. Of course, that wasn't the Supreme Court, but he's been through the process; he's been confirmed. I really don't foresee a problem.

Erwin Chemerinsky, Alston & Bird professor of law and professor of political science, Duke University

For those who care about civil liberties and civil rights, there is every reason to be troubled by John Roberts. Nothing in his record shows any support for basic liberties such as reproductive choice, or for advancing civil rights. The briefs he wrote as a lawyer, at the Department of Justice and in private practice, urged the overruling and limiting of abortion rights and programs to remedy past discrimination. In his short time as a judge his decisions have been consistently very conservative. Senate Democrats should announce that they will filibuster Roberts unless they are satisfied that he will adhere to key precedents with regard to civil liberties and civil rights.

Imagine in the 1950s a nominee who had consistently written briefs urging the overruling or limiting of Brown v. Board of Education. The nominee should have been rejected by the Senate unless he or she could show that the written record was not an accurate reflection of the person's views. That is exactly how the Senate should treat John Roberts.

Roberts has the potential to change the law in key areas such as reproductive freedom, separation of church and state, and affirmative action where Justice O'Connor had been the fifth vote for the majority. Senate Democrats must insist that they will filibuster Roberts unless they are convinced that he is not as far to the right as everything in his record suggests.

Avi Soifer, dean and professor of law, William S. Richardson School of Law, University of Hawai'i

Roberts is an experienced appellate judge and a lawyer with sterling credentials. I don't think that there's any question about his abilities. He's young, and he's popular with conservatives. And the really golden-edged thing about him is that hasn't spoken out about his views on what are currently the hotly debated issues, whether that's because he was looking down the road at how that might affect him in the future or just because he chose not to.

Conservatives like him because of who he's worked for; clerking for Rehnquist isn't indicative of his personal feelings necessarily, but there's a tendency for those things to line up. Add to that the administrations he's served in, and his work as a lawyer, and the fact that he's popular in conservative circles, and you have someone that is an ideal candidate in many regards. Now, there is the danger that he'll be unpredictable, like a [David] Souter. With most justices, you don't get a lot of surprises in the first couple of years, but then, partly because of the collegial nature of the court, and because justices must take precedent into account, and perhaps because their opinions change, you'll see them writing opinions that may run counter to expectation. So there may be that danger with Roberts, and some conservatives may have that concern.

There's some difference of opinion about whether nominees should be questioned about ideology, or their opinions of particular cases like Roe v. Wade. But in the case of a smart lawyer, if he doesn't want to answer your questions, he can be deft about it and he won't have to. And he'll have an easy defense in that, with regard to the way he's argued on some controversial issues, he can say that he was just doing his job as a lawyer. I think Roberts can expect an easy confirmation process. Certainly there will be some noise, and there's always room for revelations to surface during the confirmation hearings that will make things difficult for a nominee like [Robert] Bork or Thomas. But I don't expect that we'll be seeing anything like that on Roberts. I think those who would oppose him will find it difficult to build a strong case against him.

Ralph Neas, president, People for the American Way

Federal appeals court Judge John Roberts, nominated by President Bush to the U.S. Supreme Court, has a sparse public record; and several of his judicial opinions and argued cases raise real concerns about his suitability for the Supreme Court.

It is extremely disappointing that the President did not choose a consensus nominee in the mold of Sandra Day O'Connor. John Roberts' record raises serious concerns and questions about where he stands on crucial legal and constitutional issues -- it will be critical for senators and the American people to get answers to those questions. Replacing O'Connor with someone who is not committed to upholding Americans' rights, liberties and legal protections would be a constitutional catastrophe.

During his short tenure as a judge on the Court of Appeals for the D.C. Circuit, Roberts has issued troubling dissents against environmental protection and veterans' rights. In one case, Roberts wrote a dissent suggesting that the Endangered Species Act, at least as applied in a case concerning a California development project, was unconstitutional. All the other judges on the court except one, including judges appointed by President Reagan and the first President Bush, disagreed with Roberts. In another case, Roberts argued that federal courts cannot even hear claims by American soldiers who had been tortured in Iraq as POWs during the Gulf War. His opinion was rejected by the court's majority.

Roberts was a corporate law firm lawyer for most of his career; where he does have a record, Roberts has failed to show a commitment to fundamental civil and constitutional rights, both in his role as a deputy solicitor general and as a judge. All senators, regardless of political party, should take the time necessary to carefully review Roberts' complete record and insist that Roberts openly and fully discuss his judicial philosophy on important constitutional and legal issues.

Nancy Maveety, associate professor, political science department, Tulane University

Judge John Roberts is going to occasion a very interesting confirmation process. Because of centrist and moderate conservative Sandra Day O'Connor's pivotal role, his appointment as her replacement raises the political stakes for moderates and for Senate Democrats. Additionally, this is the first contemporary nomination to really test the separation-of-powers roles of the president and the Senate, at issue since Bush's reassertion of enlarged executive powers. Coming, as it does, post-Bork, post-red-state-blue state polarization, and post-fillibuster struggle, Roberts' nomination is asking a central political question: How, how much, and how fast should the Supreme Court change, in terms of the ideological composition of its appointees?

Roberts' background as a clerk for then-Associate Justice Rehnquist, and his service as deputy solicitor general, suggests an institutional insider's stance, one in which caution tempers any conservative policy preferences. His background at the court also immunizes him from personal association with the opinions and briefs he worked on, because in both instances, his writing was in service of a boss or a client, and did not (ostensibly) represent his own jurisprudential views. While some Senate Democrats will be aggressively questioning him on the content of both his writings as a clerk and as deputy solicitor general, these provide little insight into the content of his own views. The great debate during the confirmation hearings will be over his answers to direct questions about his views on constitutional issues and interpretation.

Bush has selected a strategically smart nominee, well credentialed and not an obvious ideologue, who nonetheless has the potential to leave his president's legacy on the high court. Privacy rights, church-state relations, and executive power in the war on terror will be affected by a Justice Roberts. But this does not mean he is an automatic vote to overrule Roe, overturn the Lemon test, or reflexively support executive action. Rather, Roberts may show that "true" judicial conservatism incorporates a philosophy of self-restraint and legislative deference, like the late Justices Frankfurter and Harlan II before him. This scenario is actually the best hope of political liberals. It would also follow through on the promise that Bush made in his campaign rhetoric.

Nan Aron, president, Alliance for Justice

Alliance for Justice has serious concerns about John Roberts. His record on the bench is thin, but what we've seen raises red flags. He has a ruling that demonstrates a willingness to roll back the federal government's power to enact laws covering individual rights and protections. He is a stealth candidate to the American people, but he is not a stealth candidate to the White House or the radical right groups that implored the White House not to engage in consensus and are now fully supporting this nominee.

His record as an official [in the] George H.W. Bush and Reagan White House also raises concerns. For instance, he advocated for overturning Roe v. Wade, and argued that citizens should be limited in their right to sue to enforce federal laws protecting clean air, clean water and other environmental protections.

Obviously President Bush faced pressure from radical right groups to nominate someone who would push their ideological agenda from the bench.

Judiciary Committee chairman Arlen Specter [R-Pa.] has said that he will hold hearings in September. Since Justice O'Connor has stated that she will remain on the bench until her successor is confirmed, there is no need to rush the confirmation process.

The Senate must fulfill its constitutional duty and thoroughly and independently examine Roberts' record to ensure that he will be a fair and impartial justice. John Roberts must openly and fully answer questions as to his judicial philosophy on these and other crucial issues, so the American people know whether he will have an open mind on issues that impact us all. This is a lifetime appointment, and Roberts, if confirmed, would make critical rulings for decades to come.

By Aaron Kinney

Aaron Kinney is a writer in San Francisco. He has a blog.

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