Supreme Court: Secret lawyer man

Conservatives' faith-based approach to John Roberts belies the importance of this nomination -- and they know it

August 7, 2005

Since the surprise nomination of John Roberts to the Supreme Court, we have slowly learned more and more about this quiet, mysterious man. We know he doesn't think much of the right to privacy, and he has advocated overturning Roe v. Wade and has jumped to the defense of violent anti-abortion protesters. We know he was a member of a "band of ideological brothers," young movement conservatives reshaping the nation's legal foundations in the Reagan administration, and he has since campaigned quietly for Bush-Quayle and Bush-Cheney. We know he looks askance at much of civil rights jurisprudence and government regulation power.

In short, the last few weeks have seen Roberts' potential transform from a bland but friendly professional to an avant-garde legal thinker in the conservative movement. But these scraps and pieces can do no more than suggest what he thinks, and there is still much to learn, whether from his extensive past writing on constitutional issues or from his answers to fair questions during his upcoming confirmation hearings.

What's strange, though, is that in this time when John Roberts is slowly being defined, Republicans have not sought to set out their own definition. Very few conservatives have been willing to embrace his emerging record and say yes, this is what we stand for. Instead, the White House has tried to undefine him -- attempting to neutralize his record and maintain his blank-slate image.

This is the strategy behind Republicans' efforts to block documents and stifle questions. But at the same time, they know how important this nomination is -- they have spent years trying to reshape the already conservative judiciary to an extreme ideology -- and they also know how crucial full knowledge of a nominee's views is, constantly bemoaning supposed turncoats like Souter, Stevens, and O'Conner.

So we can only assume this show of let's-have-faith is disingenuous, an attempt to fool the public into thinking John Roberts is someone he is not.

MYTH: Roberts should not answer questions about his judicial philosophy

Canon 5 of the Model Code, among others, forbids judges or judicial candidates from indicating how they will rule on issues likely to come before the courts or making any statement that would create the appearance of partiality.

This rule is critical to an independent judiciary. Justices must remain open-minded when an actual case comes before them. They must not even hint how they would rule. The obstructionists' ploy will be either to twist Judge Roberts' arm to make him answer unethical questions or, if he refuses, make hay with his (appropriate and ethical) silence. Yet Justice Ginsburg's confirmation hearing entirely deflates this argument.

-- Ed Meese and Todd Gaziano, "The Ginsburg rule," Washington Times, 8/4/05

The United States Supreme Court regularly transforms its "judicial power" to interpret the Constitution into liberal politics by other means....

That judicial power has degenerated into liberal politics was substantiated last week when a formidable array of female Democratic senators at a press conference dispatched an ultimatum to nominee John G. Roberts, Jr.: Either pledge under oath to affirm the correctness of Roe v. Wade (1973) and sister "right to privacy" capers, or expect their opposition. The staged event was attended by Sens. Barbara Boxer of California, Hillary Rodham Clinton of New York, Barbara Mikulski of Maryland, Debbie Stabenow of Michigan and both Patty Murray and Maria Cantwell, both of Washington state.

Miss Cantwell elaborated Judge Roberts' adherence to Roe would not be "good enough"; he must also salute an uncabined constitutional "right of privacy" to elicit her approval.

None of the Democratic six hinted they had read Roe and found its constitutional reasoning impeccable. Neither did they deny that Judge Roberts' dazzling credentials made him decidedly superior in determining the correctness of Roe and its right to privacy offspring based on the meaning of the Constitution intended by the Founding Fathers.

-- Bruce Fein, "Politics by other means," Washington Times, 8/2/05

REALITY

The press conference Bruce Fein talks about was actually an announcement of the senators' website, Ask Roberts, which emphasizes the importance of questioning by allowing visitors to submit their own questions. But several of the senators did point out the obvious priority of the right to privacy to women:

CANTWELL (D-WA): This is one of the most important questions that face this country, of what kind of person we put on the United States Supreme Court and the decisions that they will make. It's about whether our personal freedoms will be protected. It's about whether our privacy will be protected. [...]

LANDRIEU (D-LA): I want to know what Judge Roberts' philosophy is about the right to privacy. ... In January 2001, President Bush, in a television interview, was asked whether he planned to nominate those to the Supreme Court that believed, like Scalia, in a strict interpretation of the Constitution, and thereby limiting the right to privacy. As a member of the Judiciary Committee for two years, I asked every federal nominee that came before committee, when I served there, what their views on the right to privacy were -- because it's not just good enough to ask someone about whether they believe in Roe v. Wade or whether they think Roe v. Wade is settled case law. What is at the essence of the question that we want answered is: Where in the Constitution do they believe that the right to privacy exists? [...]

QUESTION: Judge Roberts comes before the committee and he says that he thinks that Roe v. Wade was wrongly settled, do any of you hold open the possibility that, if he says that, that you can still vote in favor of his nomination?

BOXER (D-CA): I think that Maria Cantwell put this in the context of privacy rights. If he says that, then you must probe. If he says he thinks Roe v. Wade was wrongly decided, we all know that case emanated from Griswold. So then you've got to say: Well, did you think Griswold was wrongly decided -- and probe that. [...]

QUESTION: But it's not an absolute?

BOXER: Well for me, I would say someone who wants to overturn Roe does not respect the right of privacy. And I would have a very difficult time -- an impossible time, frankly -- voting for someone who doesn't respect the privacy of half the population.

But the conservative, Rev. Moon-owned Washington Times, which publishes Fein's column, lead their article this way: "A group of female Democratic senators said yesterday that they will vote against Supreme Court nominee John G. Roberts Jr. unless he vows to uphold abortion rights."

It's amazing how voting on the basis of a nominee's views on the right to privacy -- his judicial philosophy -- travels through the right-wing filter and suddenly becomes voting on the basis of a nominee's vow to rule a certain way on an issue. By the time it reaches Mr. Fein, these ladies are demanding that Roberts "pledge under oath to affirm the correctness of Roe v. Wade."

This is the conservative strategy to silence legitimate questions from being answered by Roberts and to keep him a cipher, associated in the public mind with professionalism and adorable tykes: Simply collapse the vast difference between asking about legal philosophy and extracting a pledge on future cases.

Ed Meese, who as Reagan's Attorney General shepharded dozens of avant-garde lawyers like Roberts through influential government and judiciary offices, writes with his Heritage Foundation colleague that candidates "must not even hint how they would rule."

Canon 5 of the Model Code, among others, forbids judges or judicial candidates from indicating how they will rule on issues likely to come before the courts or making any statement that would create the appearance of partiality.

However, if we actually read the infamous Canon 5, it says something substantially different:

A candidate for judicial office ... * 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

So rather than prohibiting merely "indicating" or "hinting" how they would rule, it prohibits making promises; and rather than forbidding the "appearance of partiality," it forbids commitments contrary to "impartial performance."

Nominees can gab all day about anything they like -- even (gasp!) specific past cases -- as long as they don't make a promise. As Professor Vikram Amar writes,

The Supreme Court has itself already recognized this key distinction -- between permissible predictive information on the one hand, and impermissible promises on the other. In Republican Party of Minnesota v. White..., the Court invalidated a Minnesota regulation that prohibited every candidate for judicial election from "announc[ing] his or her views on disputed legal or political issues." In striking the limitation down, the Court was careful to point out that Minnesota elsewhere prohibited each judicial candidate from making a "pledge" or "promise" to decide a particular issue a particular way, a prohibition that was not being challenged and as to which the Court did not express any skepticism.

The Court in White also said many other things relevant to the topic before us today. First, the Court observed that if we define what is out of bounds in terms of issues "likely to come before the courts," we will have excluded everything, because "there is almost no legal or political issue that is unlikely to come before a judge of an American court, state or federal, of competent jurisdiction."

Moreover, the White Court noted that allowing "general" discussions of case law and philosophy while at the same time foreclosing specific statements of specific views of candidates does not provide the public with the relevant information it needs. Why? Because "like most other philosophical generalities, [general statements of judicial philosophy] ha[ve] little meaningful content for the electorate unless [they are] exemplified by application to a particular issue of construction likely to come before a court - for example, whether a particular statute runs afoul of any provision of the Constitution."

As for the idea that Justice Ginsburg's confirmation offers the only precedent for what a nominee is and is not expected to answer, would that it were so. Although she was much more evasive than other nominees, such as Stephen Breyer and Robert Bork, she frankly and openly discussed her judicial philosophy. As her Judiciary report noted, "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."

Mr. Fein, speaking to the Washington Post, described John Roberts as a fellow member of a "band of ideological brothers" in the Reagan legal team. If he is still an ideologue or "movement conservative," whose elite views would upend the lives of all Americans, and whose approach is fixed not on an open mind but a commitment to a legal agenda -- if he is an ideologue, the public should know, and so he is obligated to answer questions about his judicial philosophy.

MYTH: Nor should we see any of Roberts' past writings that could illuminate his judicial philosophy

Senate Democrats are, of course, demanding every scrap of paper ever written by Judge Roberts during his time in government service. In an attempt to placate them, the White House has turned over thousands of documents from Roberts’s tenure as an adviser to Reagan administration Attorney General William French Smith and volunteered to make available a similar number of documents from Roberts’s time in the 1980s as associate White House counsel. In all, the White House says that 75,000 or more pages of documents will be made available for the Senate’s review.

Senate Democrats, predictably, aren’t satisfied. They want everything Roberts wrote as principal deputy solicitor general, the Justice Department’s number-two lawyer before the Supreme Court, during the first Bush administration. Here the White House wants to draw the line. But it has regrettably undermined its own case with its initial release. ...

Democrats claim that the SG documents are necessary to understand Roberts’s views on the law. Nonsense. Roberts’s approach to the law is discernible in the more than three dozen legal opinions he has written in the last two years. A fishing expedition through the sensitive deliberations of several Republican administrations will not provide any better insights into his legal thinking. Because the legal recommendations and draft briefs authored or edited by Roberts during his tenure as deputy SG are merely analysis or advocacy on behalf of a client (the United States), those documents are likely to say less about Roberts’s jurisprudence than his record as a judge.

-- Editors, "Underprivileged," National Review, 7/29/05

The decision to release the Reagan documents, however, is likely to come back to bite the White House. Specifically, it makes it more difficult to hold the line on its refusal to release papers from the Solicitor General's office, where Judge Roberts worked during the administration of George H.W. Bush. While distinctions arguably exist between categories of legal documents, all constitute the private advice of lawyers to their client. Without the promise of lasting confidentiality, government lawyers will be wary of offering their candid counsel and presidents will be reluctant to seek it.

-- Manuel Miranda, "The Roberts documents," Wall Street Journal, 7/29/05

REALITY

Once again, we trod the same ground. Democrats -- whose prospects for actually blocking Roberts are slim to none -- want the public to be fully aware of what kind of justice he will be; Republicans want to keep their cipher secret, and maintain the plausibility of the notion that he is a moderate or consensus candidate.

So, as we learn more and more from his independent-minded counsel in the Reagan administration, and as it becomes clearer that he belonged to the elite of a young, ideological movement, establishment conservatives try to muddy the waters by downplaying his apparent ideology by describing it as "merely analysis or advocacy on behalf of a client."

But the National Review takes this old chestnut and updates it: no longer is the "client" the unabashedly conservative Reagan/Bush administrations, but "the United States" -- i.e., us. As we have pointed out, this is the key to understanding why the attorney-client privilege line of obfuscation is wrong. First, of course, if we are the "client" then we have a right to know what our lawyer is writing on our behalf.

But second, and more important than the contradiction of a poor analogy, government attorneys like Roberts were sworn to uphold the Constitution -- not to uphold their boss. This is the reason Robert Bork gave for refusing to become Nixon's counsel during Watergate -- he saw that his duty to the Constitution would supercede his duty to his "client," the president.

Although the Bush team is taking a lot of credit for begrudgingly releasing some documents from Roberts' tenure in the Reagan administration, as John Dean points out, it's not clear those documents were theirs to withhold to begin with, as they are covered by the Presidential Records Act. Papers from 1982-1986 are available from the Reagan Library, and those from 1981-1982 have been released by the National Archives. Even Bush's legendary powers of secrecy may not have been enough to retract these public domain documents.

And despite all their moaning, conservatives seem quite pleased about the results:

Grateful for evidence of Mr. Roberts' strong conservative inclinations from any source, we were especially pleased last week to read two dispatches by David Rosenbaum in the New York Times. With help from a colleague sifting through papers at the Reagan Library in California, Mr. Rosenbaum spent days in Maryland and Washington culling through the thousands and thousands of pages of Reagan administration documents released by the National Archives. ...

We do not assert that the statements culled by Mr. Rosenbaum from memos written 20 to 25 years ago are dispositive today. But we are deeply encouraged by those views and grateful to Mr. Rosenbaum for finding and circulating them.

-- Editors, "Roberts' conservative leanings," Washington Times, 8/2/05

Whatever is to be said, as the Journal's editorial page did yesterday, about whether the White House blundered in volunteering 75,000 pages of John Roberts's work product from his years in the Reagan administration, one sentiment is widely shared among conservatives: What a relief. Judge Roberts's writings as a young lawyer show him to be a solid constitutionalist.

-- Manuel Miranda, "The Roberts documents," Wall Street Journal, 7/29/05

The more we know about how Roberts viewed the Constitution as a government attorney sworn to uphold it, the better we all -- liberal and conservative alike -- can make an informed decision on his and future confirmations.

And the most informative of all documents may be found among memos and briefs written by Roberts when he was the politically-appointed deputy Solicitor General, a freeranging position much more independent of the president, which allowed Roberts to pursue cases he thought were in the best interests of the nation. For example, the government was not a party to a 1993 case between a women's health clinic and the militant protesters of "Operation Rescue," yet Roberts wrote a friend-of-the-court brief on behalf of the United States in defense of the group, arguing that although they physically impeded the class of "pregnant people" from free movement, they weren't discriminating against women.

It would be interesting to all of us to hear why Roberts chose to intervene in this case, and what exactly his legal thinking was in coming up with such a novel line of argument.

And, as Sen. Leahy has noted, there is ample precedent for releasing such documents: past "confidential memos" from William Rehnquist's and former Solicitor General Robert Bork's services in the Nixon White House were released to the Senate during their Supreme Court confirmation hearings.

The importance of this nomination and future lifetime appointments to the Supreme Court cannot be overstated. This is not a matter to sleepwalk though. If there are written records that can shed light on the Constitutional views of John Roberts, we are obligated to look at it during his confirmation hearings. We can debate what the records mean, and whether Roberts has matured in years since -- but we should at least be debating.