Mystery date

While the press succumbs to John Roberts' overpowering charm, the far right believes this corporate lawyer and partisan factotum is the man of their dreams. Here's why...

July 23, 2005

Intelligent. Polite. Family man. "Practicing Catholic." All-around nice guy. That's what we started off knowing about Supreme Court nominee John Roberts, thanks to mushy press reports like these:

"Town gushes over `smartest guy in class'" (Chicago Tribune)

"Supreme Court nominee Roberts 'hates bullies'" (Reuters)

"Nominee emphasizes `modesty,' `stability'" (San Jose Mercury News)

"Nominee's family beams with pride" (USA Today)

"A conservative with few hard edges" (Christian Science Monitor)

"Court nominee's life is rooted in faith and respect for law" (New York Times)

Now that the "charm offensive" has started to wear off, we might be curious about something relevant: how a Justice Roberts would determine laws affecting the lives of millions of Americans. Despite the best efforts of his boosters to portray him as a blank slate, there is convincing evidence that Roberts would be a critical vote on the Court for the regressive, far-right ideology of Scalia, Thomas, and their activist friends.

The Reagan years

An article in the Post, glowingly titled "The nominee as a young pragmatist," details several memos Roberts authored while he worked in the White House counsel's office (1982-86). In one, he creatively attacks Ted Olson, then assistant Attorney General, from the right on the issue of court-ordered desegregation, arguing that Congress has the authority to prohibit busing. In others, he shares his view -- later confirmed on the bench in Hamdan, see below -- of the expansive powers of the president.

Roberts' boss was White House counsel Fred Fielding, who said of these memos, "My staff's role was to stimulate thoughts. I encouraged people to give me their unvarnished analysis and personal views." Could anything, then, be more relevant to what he would bring to a job as an indepedent, life-appointed justice? Instead, while these few memos are publicly available at the Reagan Library, the White House has promised to block many others from being released.

The Bush Sr. years

Roberts returned to government service in 1989 as Principal Deputy Solicitor General, known as the "political deputy" because the position is appointed. Working under Ken Starr, he wrote a number of briefs on controversial cases, arguing, for example, the constitutionality of school prayer and a ban on flag burning.

In Rust v. Sullivan, a brief he oversaw stated "We continue to believe that Roe was wrongly decided and should be overruled . [T]he Court's conclusion in Roe that there is a fundamental right to an abortion . find[s] no support in the text, structure, or history of the Constitution." What's strange is that in Rust, rather than trying to overturn Roe, the government was arguing that a gag-order against doctors mentioning family planning was consistent with Roe, making such an interjection seem gratuitous.

And in the 1993 case against militant anti-abortion group Operation Rescue, Roberts filed a friend-of-the-court brief in favor of the group, even though the government was not involved in the case at all.

Operation Rescue, then led by disgraced radical Randall Terry (who has been revived by the Schiavo case), was accused of obstructing women's access to clinics by physically aggressive protesting.

One doctor, Dr. Susan Wicklund, was grabbed and slammed against a car as she tried to get through the blockade and into her office. Patients were tripped and pushed to the ground. One clinic administrator was grabbed by her hair and thrown to the ground by an Operation Rescue leader. Another was viciously choked by Operation Rescue protesters, leaving serious bruises on her neck. One patient, who was trying to enter the clinic -- not for an abortion but for post-operative care following cancer surgery -- was beaten with an Operation Rescue protester's sign. The protesters clawed at her and attacked her, causing her sutures to rupture, and she passed out.

-- Testimony of Fay Clayton before the House Judiciary Committee, 1998

Roberts' brief argued, contrary to the stated aim of Operation Rescue, that the group was not attempting to deprive women in particular access to services. The brief "asserted that, at worst, Operation Rescue was discriminating against pregnant people, not women." This is curious logic, and more curious still is why the Solicitor General felt obliged to offer it up at all.

"On behalf of a client"

During his 2003 confirmation hearing before becoming a federal judge, Roberts stated that these briefs were irrelevant because he was arguing on behalf of his client, the government: "I do not believe that it is proper to infer a lawyer’s personal views or beliefs from the arguments advanced by that lawyer on behalf of a client."

While this excuse is widely touted on the right as reason to keep Roberts' government work off the radar, it belies the curious emphasis on extreme positions in cases where the government's interest in that position is questionable -- suggesting the personal initiative of a political appointee. And more importantly, such an excuse reflects a misunderstanding of the role of the Office of Solicitor General.

By comparison:

The Solicitor General is not a neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case. My client's chief business is not to achieve victory, but to establish justice. -- Simon Sobeloff, Solicitor General under Eisenhower

The Solicitor General has no master to serve except his country. -- Francis Biddle, SG under FDR

The United States wins its point whenever justice is done its citizens in the courts. -- Frederick Lehmann, SG under Taft (inscribed on the walls of the Department of Justice)

And Robert Bork, who was Solicitor General under Richard Nixon, had this to say about government lawyers:

Robert Bork: In the summer of 1973 Haig called me over and asked me to resign as solicitor general so that I could become Nixon's chief defense attorney. Fortunately I had enough sense to say, "Give me twenty-four hours to think it over." I sat up that night discussing it with Alex Bickel and decided that it was not a job I wanted. The next day I went back to see Haig and made some legitimate demands that made it impossible for Nixon to hire me.

Interviewer: What sort of demands?

Bork: I told Haig that I had to hear the tapes. He said Nixon would not agree to let anybody hear the tapes. I explained that I couldn't put on a case without listening to the evidence. I also made a point of asking who was going to pay me. Nixon? And I was told no, that I'd be on the government payroll. I said, "A government attorney is sworn to uphold the Constitution. If I come across evidence that is bad for the president, I'll have to turn it over. I won't be able to sit on it like a private defense attorney." After a few observations of that sort, it was decided that I was not the man for the job.

In other words, government attorneys -- and those in the Solicitor General's office, in particular -- are not arguing "on behalf of a client" in the way a private attorney is. Their job is propelled by their own sense of the Constitution, and that is why the significant service of John Roberts in the Reagan and Bush Sr. administrations can give us critical insight into how he would view the Constitution on the Supreme Court.

Two years on the bench

Although he has only served on the D.C. Circuit court for two years, he has already signed several troubling decisions.

In Rancho Viejo v. Norton, Roberts and one other judge wanted to revisit a settled area of the law -- namely, whether the Endagered Species Act falls within Congress' powers at all. This is distressing because it suggests a radical view of the Commerce Clause and could signal a significant attack on the ability of Congress to do many of the things we take for granted today, such as this kind of environmental regulation.

Or, as supply-sider Larry Kudlow explains in support of Roberts:

As Mark Levin writes in his best-selling book "Men in Black," the Court has so expanded the commerce clause that it has helped create a huge regulatory state where activist judges have seized private property, taken over school systems and prisons, interceded in private-sector hiring and firing practices, ordered farm quotas and property-tax increases, and expelled God, prayer and the Ten Commandments from the public square. Levin calls this "socialism from the bench." However, rather than the regulatory state, Roberts is likely to choose private property and the economic-freedom right of individuals.

... Roberts is a genuine free-market judge ... Judge Roberts could be the first modern economic conservative to ascend to the Court.

In the important case Hamdan v. Rumsfeld, Roberts rejected the plea of the defendant -- an Al Qaeda suspect captured in Afghanistan and held at Guantanamo -- to have the question of whether he is a so-called "unlawful combatant" decided before a military court martial, rather than the special commission established solely under the authority of the president. Under Bush's executive orders, only "unlawful combatants" are subjected to these dubious commissions -- but the only body who can decide you aren't an "unlawful combatant" is the very same commission. As legal columnist Michael Dorf wrote,

Hamdan did have a hearing before a Combatant Status Review Tribunal which determined that he was either a member of, or affiliated with, Al Qaeda. Yet that Tribunal (established in the wake of the Supreme Court's Hamdi and Rasul decisions) lacked authority to determine whether as such a member or affiliate fighting in Afghanistan, Hamdan was entitled to the protections of the 1949 Geneva Convention. On this critical issue, the Tribunal accepted the President's own determination that Al Qaeda categorically does not qualify.

The D.C. Circuit, too, accepted this determination, under a principle of deference to the President as Commander in Chief. Such deference is certainly appropriate for many purposes, but it is not clear how it addresses the problem identified by the district court (which ruled for Hamdan): Article 5 of the 1949 Convention requires that when there is any doubt about captive combatants' status, they are entitled to the Convention's protection "until such time as their status has been determined by a competent tribunal," and as the district court pithily noted, "the President is not a 'tribunal.'"

This case is unfortunate not only for detainees who might not be guilty -- the military continues to release a few at a time -- and need an opportunity to state their case, but also for U.S. soldiers in future military combat -- it was for them that we signed the Geneva Conventions.

And in Hedgepeth v. Washington Metro, the infamous French Fry Case, Roberts found nothing unreasonable in police handcuffing, searching, fingerprinting, and detaining a 12-year-old girl for eating one french fry on the D.C. subway -- even though an adult would only be given a citation for such a grievous offense. Aside from the draconian absurdity of the case -- if not here, are there any limits to policing? -- his denial of Fourth and Fifth amendment grounds suggests an extremely narrow reading of the Bill of Rights that could seriously diminish many other civil rights claims.

Roberts' short judicial career already suggests several Constitutional views that should make us wary: deference to police authority and diminished individual rights, an unchecked executive power, and a Congress impotent to carry out democratic functions like regulation of business and the environment. He has never explicitly stated any of these, but these troubling avenues of thought found in his opinions -- combined with his extensive governmental writing on free speech, abortion, and church-state issues -- is enough evidence to convince us that Roberts would make a dangerously divided court almost uniformly conservative.

The "stealth" candidate

Despite this evidence, Roberts has so far managed to avoid serious criticism of his record. In particular, we are told not to bother looking at his time in the Reagan and Bush Sr. administrations, since he was just serving his clients wishes as a professional. (A strange argument which could apply just as well to any other political appointee, though most are proud of their membership on the team.)

Instead, Roberts is presented as just that -- a professional, not an ideologue. Even many liberal legal scholars are lining up to tout the glory of Roberts' fairmindedness. (See Jeffrey Rosen, Cass Sunstein, and on TV, Lawrence Tribe.)

In other words, we're being asked to ignore evidence to the contrary and believe that he is a "stealth candidate." In the past few weeks, the right wing has been warning us about these "stealth candidates" -- Republican appointees who later turn out to be, in the view of far-right activists, not loyal enough to the cause. (O'Conner, Kennedy, and especially Souter being the current examples.)

For example, Paul Rosenzweig wrote in the Washington Times that these justices "come to Washington from around the country" and are overwhelmed by Washington elites, who they "want to be respected and liked by." Thus conservatives "trust only conservatives of principle, those who have shown they can remain principled despite expediency." In other words, as we saw last week with Gonzales, only someone who has gone on the record as subscribing to the raw ideology of the far right.

Similarly, Manuel Miranda -- the disgraced former judiciary staffer under investigation for stealing Democrats files, who said, "You have no ethical duty to your opposition", and who now operates as an influential free agent in the confirmation battle -- said of Gonzales just two weeks ago:

For this president "read my lips" translates into "I will nominate justices in the mold of Scalia and Thomas." In other words, he promised to name justices along the constitutionalist spectrum of textualist to originalist. Candidate Bush had no caveats. He did not add "unless I have to replace Sandra Day O'Connor or I have two seats to fill, in which case I will choose my friend whose record on interpreting the federal Constitution is as uncertain as Mr. Souter's." ...

[H]owever Republican Al Gonzales may be, there is nothing to suggest that he is a jurist like Justices Scalia or Thomas, as the president promised. His record suggests otherwise. It suggests that he is pragmatist, at best like Justice O'Connor, and pragmatists on the bench tend to make law like politicians and not judges.

-- Manuel Miranda, "Advice on court picks," Washington Times, 7/12/05

Now, with Roberts, Miranda has completely changed his tune:

No, he is not a politician who makes promises he may or may not keep. No, there is no clear read on how he will rule on this or that issue (most especially abortion). But that is what makes conservatives the good guys. We want judges who will be judges, not judges who are a sure thing.

-- Manuel Miranda, "Rehnquist redux," Wall Street Journal, 7/22/05

Indeed, even though John Roberts, like Gonzales, said in his 2003 confirmation that lower court judges have to treat Roe as "settled law" (or stare decisis), the right wing is lining up to praise Bush for his nominee. James Dobson of Focus on the Family, Tony Perkins of Family Research Council, Operation Rescue (which Roberts spuriously supported in the 1993 case), Jay Sekulow of the American Center for Law and Justice, Rev. Rob Schenck ("an answer to the prayers of millions"), the Christian Coalition, Jan LaRue of Concerned Women for America -- basically, almost everybody on the right wing of social policy is out there saying how happy they are with John Roberts, and how confident they are he will vote to overturn Roe, ban "sodomy," and put prayer back in school.

What is the basis for their enthusiastic support of this "stealth candidate"? Just the evidence we presented above, along with personal meetings with right-wing leaders and his wife's involvement with a group called Feminists for Life. In other words, everything we're told by Republicans to ignore as irrelevant to his qualifications.

It is important to remember that confirmation to a lifetime appointment on the highest court is not a trial -- we don't have to operate in the Rovesque framework of parsing and what we can prove in court and so on. The entire career of John Roberts, especially his time in political office, gives us valuable insight into how we can expect Roberts to interpret the Constitution. We expect to learn much more in his hearings about his work and what his "judicial philosophy" is, but based on what we know now, there is almost no doubt he is a the kind of conservative who would put individual rights under the thumb of the radical right.