Sobran's --- Roberts for Rehnquist Is a Net Loss
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Roberts for Rehnquist Is a Net Loss
 by Howard Phillips 
Chairman, The Conservative Caucus, Inc.

September 9, 2005

These comments were prepared prior to the Senate Judiciary Committee’s confirmation hearings regarding President Bush’s appointment of John Glover Roberts Jr. to William Rehnquist’s chair in the U.S. Supreme Court.

Because there is so much uncertainty about where Roberts will stand on many issues, it behooves us to await the conclusion of those hearings before making a final determination as to whether a conscientious Constitutional conservative should vote against Judge Roberts’s confirmation.

When Roberts was named to succeed Sandra Day O’Connor, the likelihood was that his service on the bench, compared with that of Mrs. O’Connor, would be a net plus.

However, it became a very different story when George Bush decided to make Roberts his replacement for Chief Justice Rehnquist.

There are at least two reasons why this is so:

1. Mr. Justice Rehnquist was a consistent articulate opponent of the Supreme Court’s jurisprudence in Roe v. Wade.

2. Moreover, he was a consistent foe of pro-homosexual rulings by the court, in such cases as Romer v. Evans and Lawrence v. Texas, as well as in Bowers v. Hardwick, where his position was that of the Court majority.

There is reason to conclude that, to put it mildly, Roberts will be less dependable than was Rehnquist on the important issues of abortion and sodomy.

Here are some facts and opinions to consider:

As reported in the Los Angeles Times (Richard Serrano, August 4, 2005),
Supreme Court nominee John G. Roberts Jr. worked behind the scenes for a coalition of gay-rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people against discrimination because of their sexual orientation.

Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay activists as part of his law firm’s pro bono work. While he did not write the legal briefs or argue the case before the Supreme Court, he was instrumental in reviewing the filings and preparing oral arguments, according to several lawyers intimately involved in the case.”

The coalition won its case, 6 to 3, in what gay activists described at the time as the movement’s most important legal victory. The three dissenting justices were those to whom Roberts is frequently likened for their conservative ideology — Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.... The lawyer who asked for his help on the case, Walter A. Smith Jr., then-head of the pro bono department at Hogan & Hartson, said Roberts did not hesitate. “He said, ‘Let’s do it.’ And it’s illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job,’ Smith said.”

Roberts did not mention his work on the gay-rights case in his 67-page response to a Senate Judiciary Committee questionnaire released Tuesday.

The committee asked for “specific instances” in which he had performed pro bono work, how he had fulfilled those responsibilities, and the amount of time he had devoted to them....

Jean Dubofsky, lead attorney on the case and a former member of the Colorado Supreme Court, said she came to Washington to prepare for the Supreme Court presentation and immediately was referred to Roberts.

“Everybody said Roberts was one of the people I should talk to,” Dubofsky said. “He has a better idea on how to make an effective argument to a court that is pretty conservative, and hasn’t been very receptive to gay rights.”

The case was argued before the Supreme Court in October 1995, and the ruling was handed down the following May. Activists across the country cheered the victory. Suzanne B. Goldberg, a staff attorney for Lambda, a legal services group for gays and lesbians based in New York, called it the “single most important positive ruling in the history of the gay-rights movement.”
There are several reasons for conservatives, Christians, and Constitutionalists generally to be troubled by the voluntary assistance provided to the homosexual activists by Mr. Roberts. Among them are these:
  1. Judge Roberts did not disclose his involvement when he responded to a specific question on the questionnaire he filed with the Senate Judiciary Committee;

  2. Judge Roberts apparently had no moral objection to using his skills to advance the homosexual agenda;

  3. It suggests an absence of an understanding by Mr. Roberts that homosexual conduct is sinful and ought to be discouraged;

  4. It suggests that, as a Supreme Court Justice, Judge Roberts would divorce himself from common law principles and Biblical morality in determining his position in particular cases; and

  5. It is another example of how Judge Roberts seems to go out of his way to pander to those on the Left who might otherwise oppose him:
John Roberts says he will honor established Supreme Court rulings, telling a Senate committee that legal precedents are important to “promoting the stability of the legal system.” ... “Precedent plays an important role in promoting the stability of the legal system,” he added. “A sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath.”
Source: Hope Yen
Associated Press
August 3, 2005

John Roberts pledged ... to respect established rulings if confirmed to the Supreme Court, saying judges must recognize that their role is “not to solve society’s problems....”

Roberts provided responses to a broad array of questions involving work history, political ties and views on judicial activism. His thoughts on that subject are considered critical to gauging his position on overturning the 1973 landmark Roe v. Wade decision legalizing abortion.
August 3, 2005

Edward Lazarus, a close friend of Judge John Roberts, expresses the view that “Roberts is not burdened by a Bork-like record of speaking out in his own voice....

Roberts presents a sharp contrast to Bork in judicial philosophy. Roberts is already on record strongly disclaiming an allegiance to any particular theory of constitutional interpretation, such as original intent jurisprudence. Roberts says that he picks and chooses what interpretive tools to use (such as textual analysis, historical analysis, or reliance on precedent) depending on which tools seem best to fit a particular case....

“Putting politics aside, the current Court member Roberts most resembles is Stephen Breyer. Roberts is far more intellectual than Rehnquist, far more politic than Scalia, and — as noted above — far less extreme than Thomas.
Source: Edward Lazarus
August 5, 2005

On Feb. 16, 1982, as a special assistant to Atty. Gen. William French Smith, Supreme Court nominee John Roberts wrote a memo providing advice on how the attorney general could deal with criticism of the Reagan Justice Department from Human Events, National Review, the Heritage Foundation and other conservative organizations in a speech he was scheduled to give to conservatives.

One passage in Roberts’s memo discusses how the attorney general should handle conservative criticism of Sandra Day O’Connor, whom President Reagan had named to the Supreme Court the previous year. This passage cites five separate articles in Human Events about O’Connor and her less-than-conservative record. Three of these HE stories specifically cited a misleading internal Justice Department memo about O’Connor that had been written by then-Justice Department official Kenneth Starr. Roberts’s memo about how to finesse HE’s criticism was carbon-copied to Starr himself.

In a July 18, 1981, story, which Roberts footnotes in his memo, Human Events had reported, [sic] “Even more serious, so far as conservatives are concerned was the July 7, 1981, memo for the attorney general from counselor Kenneth W. Starr. The memo states that Starr talked to O’Connor by phone on two occasions on July 6, and that she ‘provided the following information with respect to her public record on family-related issues.’ But if O’Connor provided the record, it was far from complete. For instance, the memo refers to [Arizona] House Bill 20, which virtually eliminated restrictions as to when a doctor could perform an abortion. ‘There is no record of how [state] Sen. O’Connor voted,’ says the Starr memo, ‘and she indicated that she has no recollection of how she voted.’ Yet, Dr. Carolyn Gerster, the leader of the right-to-life movement in Arizona, has since forwarded to the attorney general a copy of an April 30, 1970, article in the Arizona Republic which boldly states that O’Connor voted in favor of the legislation.

“The Justice Department memo also completely omits from the O’Connor record her April 23, 1974, vote in the [Arizona] Senate Judiciary Committee against a resolution urging Congress to support a human life amendment to the Constitution. Why, right to lifers are asking, wasn’t this important vote in the memo? Did Mrs. O’Connor’s memory fail her, or did the Justice Department fail to include it?”

In responding to this and similar reports in HE, Roberts wrote: “A related criticism focuses on the screening and appointment of federal judges, highlighted by the O’Connor debate. The assertion is that appointees are not ideologically committed to the President’s policies, again with particular emphasis on the social agenda....

“Here again I do not think we should respond with a ‘yes, they are’ rather we should shift the debate and briefly touch on our judicial restraint themes (for which this audience should give us some credit). 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 decisional process — i.e., so long as they believe in judicial restraint. This theme should be glossed somewhat, because of the platform, but we can make the point that much criticism of our appointees has been misdirected.” [Emphasis in original.]

“The “platform” to which Roberts refers is presumably the 1980 Republican Party platform, which called for the appointment of judges “who respect traditional family values and the sanctity of innocent human life.”
Source: Human Events
August 15, 2005; page 6
(Also at Human Events Online)

Democrats should recognize an olive branch when they see it.

By choosing John G. Roberts to replace Sandra Day O’Connor on the Supreme Court, President Bush came as close as possible to finding a non-ideological, consensus nominee who can also lay claim to being a Republican....

Roberts has no far-reaching ideology, no creative articles, no revolutionary plans for constitutional law. He looks like an emblem of the Washington establishment....

He is most likely to follow the center of the court in its current direction ... as a standing member of the Washington establishment he won’t try to turn the ship around or steer it to a completely different port.... Roberts is no Robert Bork.... Confirming Roberts could also be the first step in bringing consensus to the Supreme Court itself.
Source: John Yoo
Washington Post
July 21, 2005; page A23

Supreme Court nominee Judge John G. Roberts wrote that Congress should not be able to strip federal courts of jurisdiction in cases involving school prayer, according to a previously undisclosed document obtained by The Washington Times.

The document contradicts newspaper and wire-service reports that suggest he favored legislation aimed at barring federal courts from reviewing school prayer cases.

“Such bills were bad policy and should be opposed on policy grounds,” he wrote in a May 6, 1985, memo to his boss, White House Counsel Fred Fielding....

Mr. Roberts wrote the 1985 memo in response to a request from the White House Office of Management and Budget, which sought a legal opinion on the proposed Voluntary School Prayer Act of 1985.

“This bill would divest the Supreme Court of jurisdiction to hear any case involving voluntary school prayer,” he wrote on White House stationery.

Mr. Roberts then noted that he had already looked into the issue when he was an assistant attorney general. Although he concluded such bills were “bad policy,” he acknowledged they were not expressly prohibited by the Constitution.

“After an exhaustive review at the Department of Justice, I determined that such bills were within the constitutional powers of Congress to fix the appellate jurisdiction of the Supreme Court,” he explained....

Mr. Roberts believed such bills should be opposed on policy, not constitutional, grounds....
Source: Bill Sammon
Washington Times
July 28, 2005; page A22
Barring evidence to the contrary which might emerge from the confirmation hearings, it would seem that the confirmation of Judge Roberts to replace William Rehnquist would be a net loss for the “conservative” cause.

If I were a United States Senator, here follow some of the questions which I would direct to him:
  1. To what degree would a Justice Roberts feel bound by precedent, even in cases which he acknowledges to have been wrongly decided, such as Roe v. Wade?

  2. Is Judge Roberts prepared to set aside the “Lemon test,” which requires that public acknowledgment of God have a secular purpose?

  3. What view does Judge Roberts have concerning the Interstate Commerce Clause of the Constitution?

  4. Under what circumstances, if any, would Judge Roberts reference foreign law, foreign constitutions, foreign court rulings, and “world opinion” in formulating his Supreme Court opinions?

  5. How does Judge Roberts interpret the proper application of the “good Behaviour” clause in Article III of the Constitution?

  6. Would Judge Roberts conclude as a justice that, even though Article III Constitutionally authorizes restrictions on the federal judiciary, it ought not be applied, for reasons of prudence?

  7. Does Judge Roberts believe that Romer v. Evans was wrongly decided? What about Hardwick v. Bowers? What about Lawrence v. Texas?

  8. Is it legitimate, in Judge Roberts’s view, for the federal government to fund organizations that engage in policy advocacy?

  9. When Judge Roberts is faced with the possibility of overturning a previous Supreme Court decision that he believes to have been wrongly decided, what factors would he take into account in deciding whether to overturn rather than adhere to stare decisis? How much emphasis would he give to the ability of people to react by changing future behavior if overturning would have no impact on their previous behavior?

  10. What does Judge Roberts believe that the members of the Constitutional Convention and the state ratification conventions understood to be the definition of “interstate commerce”? On what does he base this definition?

  11. Does Judge Roberts believe that the phrase “the people” has the same meaning everywhere it appears in the Constitution? If not, what different meanings would he assign to the phrase?

  12. Given that the Constitution assigns Congress the power to “declare war”, what limits does that put on the president’s role as commander in chief?

  13. When interpreting the Constitution, how much authority should the debates in the ratifying conventions and the Constitutional Convention have?

  14. How did the authors of the First Amendment define “an establishment of religion”? Has that definition been changed by any subsequent amendments to the Constitution?
Howard Phillips

Additional comments and observations by Howard Phillips on the Roberts nomination can be read at The Conservative Caucus website. He also discussed the matter with Dan Flynn in a four-part interview at The Flynn Files. Scroll down to August 17.
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