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Sunday, Nov 8, 2009
Activists and scholars size up Bush's Supreme Court nominee.
Jul 20, 2005 | 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.
