Mums the word! Roberts and his handlers (Reuters)
Supreme Court: The silent treatment
The right wing is working overtime to keep us in the dark about their fastidious nominee
July 31, 2005
It's simply amazing that the right wing, so recently demanding proof of ideological credentials from Bush's prospective nominees, now wants us to respect John Roberts' carefully crafted blank-slate image. Of course, they have their own reasons for putting their hard-earned political leverage behind him. Don't the rest of Americans get to have reasons, too, for supporting or opposing him?
Instead, the conservative judicial-nominee juggernaut is putting its vast resources towards keeping us all in the dark. Piece by piece, anything we might consider is declared out of bounds -- his writings as a government lawyer appointed by Reagan and Bush, his wife's involvement in the anti-choice movement, and so on, things which no doubt created his support among so-called social conservatives.
So the administration is denying access to Roberts' government writings, and waging a campaign to pre-emptively dismiss any and all relevant questions that may be posed to him during his confirmation -- laying the groundwork for a take-it-or-leave-it silent treatment by this artful dodger.
MYTH: Those who oppose, or even question, Roberts are "anti-Catholic"
For many Democrats the only good Catholic is a bad one -- a Catholic ready to dissent from his religion for the sake of a spot in the secularized public square. Pat Leahy, Chuck Schumer, and company are sure to question, in one veiled form or another, Supreme Court nominee John Roberts about his Catholicism. That is, they won't baldly ask him about his religion but they will probe his "personal" views, and the question implied will be: You promise to give our judges' liberal rewriting of the Constitution greater priority than your own religion, right?
... To counter the Democrats' anti-Catholic bigotry -- which below its euphemistic covering amounts to saying that believing Catholics can't be trusted with the Constitution -- Roberts could point out that two Catholics, Thomas Fitzsimons and Daniel Carroll, signed it.
... Since everything for the Democrats comes down to Roe v. Wade -- as it contains within it the revolutionary wedge without which uprooting the written Judeo-Christian Constitution and creating the space for their unwritten relativistic one is impossible -- Roberts' membership in a religion explicitly opposed to abortion is a matter of intense interest to them.
... They are not looking for a judge but a politically correct signatory to the ongoing Constitutional Convention they want the Supreme Court to remain. All the talk of a nominee's "personal views" is nothing more than a litmus test against those who subscribe to the theistic philosophy that informed America's founding documents. By "mainstream thinking" the Democrats mean thinking like those in the minority, a group of de facto secularists who only approve of followers of religion entering the public square if they promise to lose it.
-- George Neumayr, "Antireligious tests," American Spectator, 7/21/05
Senator Leahy's litmus test would force Judge John Roberts to act unethically by making a pledge to rule a specific way on a case that might one day come before the Supreme Court. Senator Leahy is setting a dangerous precedent by demanding that Judge Roberts prejudge a hypothetical abortion case.
The litmus test strategy to block confirmation of John Roberts is now becoming much more evident. Senator Durbin reportedly challenged Judge Roberts' religious beliefs in such a way as to raise concerns that Judge Roberts may be subjected to a litmus test despite the Constitutional requirement that no religious test be imposed on any judicial nominee. And now, Senator Leahy makes clear his intention to impose an abortion litmus test.
-- Tony Perkins (President), Family Research Council press release, 7/28/05
First, there is the fact of Roberts' Catholicism. He was raised in a Catholic family, went to Catholic high school, and claims membership in the Catholic Church. Now, admittedly, membership in the Catholic Church alone would not automatically place him in the ranks of those who would vote to overturn Roe v. Wade. Indeed, there are many "Catholics" in Washington who, like Teddy Kennedy, work at cross purposes to what the Church teaches about life and family. CINOs, "Catholics in name only," we call them.
Roberts, however, is said by friends of ours to be "devout." The parish in Washington, D.C., that he and his family attend, is known for its orthodoxy. Moreover, he keeps his Sunday obligation, that is, he is in Mass each and every Sunday. He who keeps the Third Commandment, "Remember the Sabbath day and keep it holy," will likely honor the others as well, including the Fifth, "Thou shalt not Kill."
-- Steven Mosher, "Roberts will rule for life," NewsMax, 7/25/05
REALITY
As we've written many times, without at least a modicum of separation between a political party and a church, you're going to get the raw end of both deals. If every political point is a piece of dogma, then politics is just one long holy war.
Witness this bit of logical legerdemain: the right declares a key issue in politics and jurisprudence to be equivalent to an entire religion, so that disagreement on that issue transforms into religious "bigotry" or even a "de facto religious test." Add enough issues to your church-slash-party, and soon there's nothing left to talk about.
In reality, what we are all wondering now is how John Roberts will construe the law. Whether his interpretation of the Constitution is informed by Catholicism, Zoroastrianism, or America's Funniest Home Videos doesn't matter. The interpretation does.
This persecution fantasy predates the selection of Roberts as the nominee. Back on July 17, Catholics for the Common Good warned us in a press release to "Stop demanding an abortion litmus test on judicial nominees which is de facto religious discrimination and would exclude people faithful to the doctrine of their churches."
And it began two years ago when the Senate considered Bill Pryor for the circuit court. As People For the American Way recounts,
In June of that year, during a hearing on the nomination of William Pryor to the 11th Circuit Court of Appeals, Republican Senate Judiciary Chairman Orrin Hatch (UT) inexplicably asked Pryor about his religious affiliation, to which Pryor responded that he is a Roman Catholic. Democratic Senator Pat Leahy (VT) angrily objected to Hatch’s question, but Hatch tried to spin the issue by responding that “General Pryor’s religious beliefs have been put squarely at issue, and if not directly, indirectly.” When Leahy said that asking about a nominee’s religious beliefs would set a “terrible precedent,” Hatch responded, “Then let’s get the outside groups to stop doing that,” even though none had done so. Indeed, it was Hatch who raised Pryor’s religion -- during his opening statement, before a single Senator had even had the opportunity to ask a question of the nominee.
Shortly thereafter, the campaign to smear those who opposed Pryor’s confirmation as "anti-Catholic" reached its culmination when the Committee for Justice began running print and radio ads asking “Why are some in the US Senate playing politics with religion?” and featuring a courthouse with a sign hanging from the door reading “Catholics Need Not Apply.”
The strategy is especially revolting given that the two highest ranking Democrats on the Judiciary Committee, Pat Leahy and Ted Kennedy, as well as committee member Dick Durbin, are all Catholics.
MYTH: Senators considering the nomination shouldn't have access to Roberts' writings from when he worked as a government lawyer
Because Roberts only has two years of experience deciding cases from the bench, Democrats may request writings and other work done by the nominee while he served as White House counsel for then-President Reagan from 1982-1986 and while he was principal deputy solicitor general during the administration of George H.W. Bush. The White House said Sunday it won't hand over all such material but Attorney General Alberto Gonzales said all requests would be considered. ...
But legal experts agree that probing Roberts' filings when he was a lawyer representing clients isn't necessarily fair game, since Roberts was espousing the views of his client and not necessarily his own.
-- "Grappling with the 'Ginsburg rule,'"" Fox News, 7/26/06
Even if all goes well and Judge Roberts is confirmed, there are virtually certain to be liberal Senators trying to get his "views" on all sorts of issues and probably demanding confidential government documents that nobody is entitled to get, in order to dig deeper into his "views."
What makes all this a cheap farce is that the very Senators who demand to see confidential memoranda from John Roberts' days in the Justice Department know in advance that no administration of either party is likely to release such confidential material -- not if they ever expect people to speak candidly in the future when their advice is sought.
REALITY
Last week we went into some of the hints of John Roberts' service in Reagan's White House counsel's office, Reagan's Attorney General's office, and Bush Sr.'s solicitor general office. He authored briefs and wrote memos on a variety of policies and constitutional issues, such as busing, executive power, and abortion.
And we explained that, contrary to the notion that "Roberts was espousing the views of his client," his duty as a government attorney is to the Constitution first. His boss at the White House counsel's office put it this way: "My staff's role was to stimulate thoughts. I encouraged people to give me their unvarnished analysis and personal views." Could anything be more indicative of how Roberts would interpret the Constitution than how he did interpret it?
And given Roberts' short time as a judge, with relatively few written opinions and no academic career, any documentation of his constitutional views is absolutely critical to making an informed decision on whether to give him a lifetime appointment to the high court.
And there is certainly precedent: William Rehnquist and Robert Bork, who both worked as government attorneys for Richard Nixon, both disclosed such so-called confidential memos when nominated to the Supreme Court.
MYTH: Democrats aren't allowed to ask Roberts about his views
I had the privilege of working with the Mozartlike prodigy at the Justice Department during the Reagan administration. To ask what school of jurisprudence inspires Judge Roberts would be like asking Shakespeare what school of drama gave birth to his genius. He sports a trenchant and original legal mind, combining the profundity of Socrates, the wit of Alexander Pope and the statesmanship of Abraham Lincoln. He will be a Justice who lives for the ages, an appointment that should be recorded as one of President Bush's finest hours. ...
Justice Roberts can be expected to look askance at intellectually flabby Supreme Court precedents that beset abortion, the death penalty, racial preferences, congressional power under the Commerce Clause and section 5 of the Fourteenth Amendment, the establishment clause, campaign contribution and expenditure limitations, and unenumerated rights of privacy. But he should neither be asked by senators nor should he respond to questions about his judicial views on particular issues, a reticence that also characterized exchanges between the White House and Judge Roberts. Justice requires the appearance of justice. That appearance is stained if a Supreme Court nominee has prejudged an issue during confirmation hearings outside the customary adversarial process and with an incentive to abandon sound constitutional viewpoints to propitiate Senate detractors.
-- Bruce Fein, "Impeccable choice," Washington Times, 7/26/05
At her 1993 confirmation hearing, Ruth Bader Ginsburg, invoking her ethical obligation as a judge to maintain both the fact and the appearance of impartiality, steadfastly declined to answer any questions about her current views on issues that might come before the Court. As she explained the Ginsburg Standard in answering a question about “sexual orientation”: “I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews.” On issue after issue after issue, Ginsburg applied this standard in not answering questions. ...
Senate Democrats, having recognized the legitimacy of the Ginsburg Standard when applied to Ginsburg's nomination, are obligated to respect Judge Roberts's invocation of that same standard.
[M]any Democrats plan to ask the candidate about his views as they weigh whether to give the thumbs-up to President Bush's nominee. "I urged Judge Roberts, as far as he can legally within the canons of ethics, to be forthcoming and honest with his answers," Sen. Dick Durbin, D-Ill., said after meeting with Roberts on Friday. "If he is open and honest, I think it will go a long way."
The "canons of ethics" mentioned by Durbin include Canon 5 of the American Bar Association's Model Code of Judicial Conduct — informally called "the Ginsburg rule" by many Republicans. Named after Supreme Court Justice Ruth Bader Ginsburg, who chose not to answer more than 30 questions during her confirmation hearings in 1993, it refers to how a judicial nominee can choose not to answer questions that may hint at how he or she would rule on a future case. ...
"The Ginsburg rule suggests that Republican senators with these legitimate concerns about Ginsburg's past record did not vote against her because she refused to talk about her views," said Todd Gaziano, director of The Heritage Foundation's Center for Legal and Judicial Studies.
-- "Grappling with the 'Ginsburg rule,'"" Fox News, 7/26/06
The Senate Should Not Ask Roberts About Political Issues. Some Senators, reflecting the prodding of interest groups, will doubtless demand that Judge Roberts opine on one political issue or another, be it abortion or the war on terror. These are vitally important topics to be sure, but they are for us, the people, and the elected delegates we have sent to the House and Senate and state assemblies, to address. The role of a Judge is far more limited.
-- Douglas Kmiec, "Why John Roberts will be a superb justice," FindLaw Writ, 7/25/05
Even if all goes well and Judge Roberts is confirmed, there are virtually certain to be liberal Senators trying to get his "views" on all sorts of issues and probably demanding confidential government documents that nobody is entitled to get, in order to dig deeper into his "views." ...
It is a disservice to the country to promote the idea that a judge's "views" on particular policies are what matter. ...
Respect for the separation of powers should apply to all three branches of government. Senators have no right to try to extort a pledge from a judicial nominee to vote a particular way on cases he has not heard -- and that is what Senators are doing when they talk piously about a "right to privacy" or other buzzwords.
REALITY
No matter how many ridiculous superlatives Bruce Fein or the religious right use to describe John Roberts to us, we're not going to learn anything from them. No matter how many times empty phrases like "strict construction" and "judicial activism" are tossed off, we're still where we started. If we're to know anything at all about how Roberts will treat the Constitution, he's going to have to tell us.
Of course, as we learned during his 2003 confirmation to the circuit court, he is a master of the dodge. He managed to spend the majority of his hearing arguing with Chuck Schumer about what kinds of questions he will or won't answer.
This time, the stakes are too high to allow for that kind of pussyfooting around. We need to be clear about the questions Roberts needs to answer.
Here's what Arlen Specter, now the Judiciary Chair, wrote in 2000:
[T]he Senate should resist, if not refuse to confirm Supreme Court nominees who refuse to answer questions on fundamental issues. In voting on whether or not to confirm a nominee, senators should not have to gamble or guess about a candidate’s philosophy, but should be able to judge on the basis of the candidate’s expressed views.
The conservative strategy has been to talk about a nominee's views as "political views" -- implying that we want to know whether Roberts is a Republican or a Democrat, or whether he would support or oppose a piece of legislation as a citizen or politician. But that isn't the case. The views we want to know about are the ones that form his interpretation of the Constitution -- his judicial philosophy.
And while it is not OK for a nominee to make any promises or to tell how he would rule on a particular case (e.g., a case working through the courts now), he should be able to answer questions about past cases.
As Sen. Specter, again, wrote in a New York Times op-ed last week,
Some senators have stated their intention to directly ask the nominee if he would overrule Roe v. Wade. While senators may ask any question they choose, the nominee may answer or not as he sees fit. The confirmation precedents forcefully support the propriety of a nominee declining to spell out how he or she would rule on a specific case. ...
This, of course, does not foreclose probing inquiries on the nominee's general views on jurisprudence. For example, it would be appropriate to ask how to weigh the importance of precedent in deciding whether to overrule a Supreme Court decision. Some legal scholars attach special significance to what they call superprecedents, which are decisions like Roe v. Wade that have been reaffirmed in later cases.
There's the difference: if you ask him "if he would overrule" a case, that's asking for a commitment to a future decision. That's precisely what Canon 5 of the code of ethics for judicial nominees says: a candidate "shall not ... with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office."
But you can certainly ask him his views of the legal philosophy of Roe, or any other past case. It's not very difficult to avoid extracting a pledge, especially on established precedents. For example, while Ruth Bader Ginsburg refused to commit to overturning or upholding Roe, she talked a great length about its jurisprudence. Next time someone mentions the "Ginsburg rule," remember this, from the National Women's Law Center:
Here’s Justice Ginsburg’s response to then-Senator Hank Brown's question about the constitutional underpinnings of the right to choose:
[Y]ou asked me about my thinking about equal protection versus individual autonomy, and my answer to you is it is both. This is something central to a woman's life, to her dignity. It is a decision that she must make for herself. And when government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.
And here’s her answer to a question by Senator Leahy about whether there’s a constitutional right to privacy:
There is a constitutional right to privacy which consists I think of at least two distinguishable parts. One is the privacy expressed most vividly in the Fourth Amendment, that is the government shall not break into my home or my office, without a warrant, based on probable cause, the government shall leave me alone. The other is the notion of personal autonomy, the government shall not make my decisions for me, I shall make, as an individual, uninhibited, uncontrolled by my government, the decisions that affect my life's course.
Indeed, the Judiciary Committee's report on the Ginsburg nomination concluded that "the committee knows far more about Judge Ginsburg's views on reproductive rights than it has known about any previous nominee's. Judge Ginsburg’s record and testimony suggest both a broad commitment to reproductive freedoms and a deep appreciation of the equality and autonomy values underlying them."
John Roberts has an obligation to the nation to be at least as candid in his answers to questions about his constitutional views.
