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:
- Judge Roberts did not
disclose his involvement when he responded to a specific question on the
questionnaire he filed with the Senate Judiciary Committee;
- Judge Roberts apparently had no moral objection to using his skills to
advance the homosexual agenda;
- It suggests an absence of an understanding by Mr. Roberts that
homosexual conduct is sinful and ought to be discouraged;
- 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
- 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.”
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.
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.
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.”
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:
- 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?
- Is Judge Roberts
prepared to set aside the “Lemon test,” which requires that
public acknowledgment of God have a secular purpose?
- What view does Judge
Roberts have concerning the Interstate Commerce Clause of the
Constitution?
- 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?
- How does Judge
Roberts interpret the proper application of the “good Behaviour”
clause in Article III of the Constitution?
- 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?
- Does Judge Roberts
believe that Romer v. Evans was wrongly decided? What about
Hardwick v. Bowers? What about Lawrence v.
Texas?
- Is it legitimate, in
Judge Roberts’s view, for the federal government to fund
organizations that engage in policy advocacy?
- 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?
- 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?
- 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?
- 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?
- When interpreting
the Constitution, how much authority should the debates in the ratifying
conventions and the Constitutional Convention have?
- 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
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