With Roberts Pick, Uncertainty on All Sides
BY David Freddoso
August 7-13, 2005 Issue | Posted 8/7/05 at 1:00 PM
WASHINGTON — The nomination of Judge John Roberts to replace retiring Justice Sandra Day O'Connor has created more questions than answers for pro-life voters.
The 50-year-old Roberts is a practicing Catholic, a graduate of Harvard Law School, and a brilliant, well-qualified lawyer who previously served in two Republican presidential administrations. His wife is actively involved in the pro-life group Feminists for Life, and they have adopted two young children.
Although this brief biography may offer a few hints, it is almost anyone's guess what Roberts stands for.
Because Senate Democrats delayed his judicial confirmation during the first two years of the Bush presidency — along with a host of other appellate nominees — Roberts was not confirmed to the District of Columbia Circuit Court until 2003. This makes his record on the bench quite meager.
Former colleagues have told various publications that Roberts has never been outspoken about anything — indeed, that he may have never said anything controversial in his entire life.
Roberts has even tried to downplay what little paper trail there is. For example, he wrote a brief when he served as deputy solicitor general under President George H.W. Bush, which stated that the opinion in Roe v. Wade “finds no support in the text, structure, or history of the Constitution.” Although this may give hope to pro-lifers, Roberts said in his 2003 confirmation hearing that he had been representing the Bush administration's position on Roe, not necessarily his own position.
Senators Lend Support
Roberts's lack of a paper trail has left Democrats without much ammunition to use against the nominee. And with even partisan Democrats such as Robert Byrd of West Virginia and Hillary Clinton of New York already offering tentative support, Roberts appears ripe for confirmation. One GOP Senate staffer felt confident enough to predict privately a 70-vote victory.
Democrats are poised to offer at least token resistance. They are currently demanding access to memos he would have written while serving as deputy solicitor general, and the Bush administration is refusing on the grounds of attorney-client privilege. But the common wisdom on Capitol Hill suggests that Roberts’ confirmation will sail through the Senate.
The Bush administration has worked hard to sell Roberts to its constituency. While introducing Roberts two weeks ago, Bush promised that the judge “will strictly apply the Constitution and laws, not legislate from the bench.”
But the nominee's thin record has some Republicans worried. The last Republican “stealth” nominee to the Supreme Court was Justice David Souter. Despite assurances from President George H.W. Bush's staff that Souter was privately friendly to the Republican platform, he immediately became one of the high court's most reliably anti-GOP votes as soon as he was confirmed.
“There's a lack of a real public record, and there's certainly a lack of paper trail,” said Bernard Dobranski, dean at the Ave Maria School of Law. “The real concern comes out of the Souter nomination, in which there was also no paper trail.”
The documents that have been released date back to Roberts’ service as special assistant to Attorney General William French Smith during the Reagan Administration. At the time, Roberts was a 29-year-old lawyer writing legal analyses on various topics, including school busing and affirmative action, in which he generally tends to favor limited government.
Regarding the question of the ideology of Reagan's judicial nominees, Roberts wrote, “It really should not matter what the personal ideology of our appointees may be, so long as they recognize that their ideology should have no role in the decision process — i.e., as long as they believe in judicial restraint.”
While nothing in these writings provides a smoking gun about Roberts’ personal views — particularly because they are so old — Dobranski pointed out that they are consistent with Bush's description of Roberts.
“It seems to me the kind of analysis you would expect from a conservative,” he said.
“Roberts’ credentials are impeccable, his pedigree is strong, his intellect is sound,” said a spokesman for Sen. Sam Brownback, R-Kan., a member of the Senate Judiciary Committee. “But the senator just did not know enough about his legal background and judicial philosophy. He would much prefer that it be someone whose judicial philosophy is well known.”
The spokesman said that Brownback, who met one-on-one with Roberts July 25, now feels “much more comfortable” with the nominee, but he added, “He still wants to use the hearing as an opportunity to learn more about his philosophy.”
Many other Republicans, hoping to shepherd Bush's nomination through the Senate without a major confrontation over abortion, will probably argue against the idea that nominees should answer questions about cases they might hear while on the court. They look back to the confirmation of Justice Ruth Bader Ginsburg in July 1993 as their model. During her hearings, Ginsburg explicitly refused to answer any questions about her views or her judicial philosophy.
By that standard, Roberts could refuse to comment on any abortion-related topic, because in November, the Supreme Court will be taking up two abortion-related cases, including Ayotte v. Planned Parenthood, which will test New Hampshire's parental consent law.
David Carle, a spokesman for Sen. Patrick Leahy, D-Vt., ranking Democrat on the Judiciary Committee, equivocated on whether the Ginsburg standard would apply to Roberts's hearings.
“Senator Leahy believes that nominees are entitled not to answer questions about specific cases that are before the court,” he said. He added, however, that it would be appropriate to ask about “settled law” from prior cases — and he specifically mentioned Roe.
Carle also said that Roberts’ Catholic faith should make no difference in his confirmation hearings.
“There is no religious test for office in the United States and there never should be,” said Carle. Religion is “completely out of bounds.”
Still, the issue of Roberts's religion came up July 25 when law professor Jonathan Turley wrote in the Los Angeles Times that Roberts told an anonymous senator that Roberts would have to recuse himself in cases where the U.S. Constitution conflicted with his Catholic faith. The source for this anecdote turned out to be Sen. Richard Durbin, D-Ill. — a strongly pro-abortion Catholic lawmaker — who disputed Turley's facts after publication and denied that he had said any such thing. Roberts and Durbin both denied Turley's story. Durbin said that Turley got both the question and the answer wrong.
Meanwhile, Democratic lawmakers, including Sens. Charles Schumer of New York and Edward Kennedy of Massachusetts, have both declared that the pro-life activism of Roberts’ wife, Jane Sullivan Roberts, is off-limits for questioning of the nominee.
David Freddoso writes from Washington, D.C.
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