Roberts' record is abysmal, and it's worth the fight to defeat him

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Sun, 18 Sep 2005 01:26:52 -0400

Roberts' record is abysmal, and it's worth the fight to

defeat him

 

 

 

 

Long, but good review of where Roberts REALLY stands on the issues:

 

http://indyweek.com/durham/current/news.html

 

Source: Indyweek

Published: September 14, 2005 Author: Roberts' record is abysmal,

and it's worth the fig

For Education and Discussion Only. Not for Commercial Use.

 

 

Roberts' record is abysmal, and it's worth the fight to defeat him

 

An eminent constitutional scholar says that his stands are troubling

on abortion, gay rights, civil rights and more.

 

B Y D A N I E L H . P O L L I T T

 

Alexis de Tocqueville, the French visitor to America in the 19th

century, made many sage observations about what he saw. Pertinent here

are his comments comparing the president, the Congress and the Supreme

Court. He wrote that:

 

" The President may err without causing great mischief. Congress may

decide amiss without destroying the Union. But if the Supreme Court is

ever composed of imprudent or bad men, the Union may be plunged into

anarchy or civil war. "

 

All this to say that President Bush's nomination of John G. Roberts to

be chief justice of the Supreme Court bears very close scrutiny.

Roberts lacks a public paper trail, making him a hard target (some

have theorized that's why he was nominated) but he is well known to

the right. For at least a year, Leonard Leo, chairman of Catholic

outreach for the Republican Party, and Jay Sekulow, counsel for Pat

Robertson's Protestant evangelical legal center, were tapped by the

White House to reassure conservative allies that Roberts was a good

bet in cases about abortion, same-sex marriage and public support for

religion.

 

We do know about his personal life.

 

Roberts was born in Buffalo, N.Y., but moved to Indiana at the age of

4 when his father was transferred there by Bethlehem Steel. He lived

in a " gated golf course community " overlooking Lake Michigan. He

attended an exclusive Catholic boarding school where he ranked high in

his class, captained the high school football team, and was popular

with his classmates.

 

He finished Harvard College in three years, summa cum laude, and

attended Harvard Law School, graduating magna cum laude. He was the

managing editor of the Harvard Law Review in 1976.

 

With these credentials, he earned a clerkship with highly regarded

Judge Friendly of the federal circuit in New York. He then clerked for

then-Associate Justice William Rehnquist of the Supreme Court.

Clerkships are highly prized positions and go to only the brightest.

They generally last one year.

 

Roberts completed his clerkship in time to enlist in the Reagan

revolution. In 1981, Roberts joined the Department of Justice as

special assistant to Attorney General William French Smith. It was a

one-on-one, personal relationship. In 1982 he moved to the Reagan

White House, where he served with five others as assistant counsel.

Fred Fielding was the counsel, Ed Meese was the counselor. In 1986, he

left government to join the prominent Washington, D.C., firm of Hogan

and Hartson.

 

He began working in government once more in 1989 to serve in the first

Bush administration as the principal deputy solicitor general under

Kenneth Starr. In 1993, with the election of Bill Clinton, he went

back to his old law firm. In 2003 he was appointed to the U.S. Court

of Appeals for the District of Columbia.

 

He has argued 39 Supreme Court cases, winning 21 decisions. In most of

these cases, Roberts represented corporations. On behalf of the

National Mining Association he defended " mountain top removal coal

mining " before the Court Appeals for the Fourth Circuit and won. In

this type of mining, the coal companies push the top of a mountain

into a valley below to get at the coal seams.

 

Roberts made more than $1 million a year at Hogan and Hartson and has

a net worth of $5.3 million. His wife, Jane Marie Sullivan, is also a

lawyer and active in Feminists for Life, an anti-abortion group. They

were in their 40s when they married and have adopted two children.

 

So much for the bare bones of his private life. Where does he stand on

significant issues of the day? Roberts does not have a long paper

trail ... no law review articles, no op-eds, no speeches. But he is

not entirely a stealth candidate.

 

We have the papers he wrote from 1982 to 1986 during his early years

with Attorney General Smith and for the Reagan White House. We have

the briefs he filed for the first Bush administration from 1989 to

1993, and a few decisions from his first two years on the Court of

Appeals.

 

The record reflects that when the Reagan-Bush administrations reviewed

the Carter achievements, there were two views: conservative and more

conservative. Roberts was in the " more conservative " camp.

 

Let's take a look at what we have:

 

Gay Rights

Ahead, the Supreme Court will deal with the " Don't ask. Don't tell "

policy of the military, the implications of same-sex marriage under

the Full Faith and Credit Clause of the Constitution (does North

Carolina have to recognize a Massachusetts same-sex marriage?), and

regulations that withhold federal funds from colleges that bar

military recruiting (under anti-discrimination policies).

 

Nothing is known about Roberts' views on such matters; however, the

White House secretly told us that he had volunteered to help a " gay

group " in a Supreme Court case. Presumably this was to indicate that

he was open-minded.

 

Here are the facts. Some towns in Colorado had enacted human rights

laws prohibiting discrimination because of sexual preference. Colorado

then amended its constitution to prohibit laws protecting homosexuals.

Gays protested, alleging denial of equal protection.

 

The law firm of Hogan and Hartson has a " pro bono " department, which,

among other things, stages mock arguments where the litigants can

practice. The lawyer in change of the pro bono program asked Roberts

to play the role of a conservative justice on one of these moot

courts. He did and asked questions which, later in real life, were

asked by Scalia. Roberts' assistance in the case was over in six hours.

 

Abortion

There is no doubt that Roberts opposes abortion.

 

In 1991, in the " gag case " of Rust v. Sullivan, he defended a federal

rule that cut off funds to family planning clinics if they advised

about abortions or referred patients to other doctors for advice on

abortions. Roberts argued that this did not unduly burden the right to

an abortion, and in any event, Roe was wrongly decided and should be

overturned. Roberts won in the Supreme Court, but the Clinton

administration repealed the " gag " rule.

 

Bray v. Alexandria Women's Health Clinic (1992) was a suit by the

clinic to enjoin Operation Rescue from blocking access to abortion

clinics. The government was not a party to the case, but intervened on

behalf of Operation Rescue.

 

The issue on trial was whether the protesters in Operation Rescue had

conspired to deny a class (women) of their rights under the

Constitution. Roberts argued that the blockade of the clinics was not

a conspiracy against women but against abortion, ignoring the fact

that only women are able to exercise the right to an abortion. Roberts

won in the Supreme Court, but the Clinton Congress enacted a law

creating a hassle-free " bubble " surrounding clinics.

 

At his 2003 confirmation hearings, Roberts said that Roe v. Wade was

" settled law, and there is nothing in my personal view that could

prevent me from fully and faithfully applying that precedent. " This

statement apparently unsettled the right wing. On July 27, 2005,

Attorney General Gonzales said in a press conference that Roe v. Wade

is " settled law for lower courts, but the Supreme Court is not obliged

to follow it. Justices do not have to abide by a previous Supreme

Court ruling if they believe it is wrong. "

 

On Aug. 10, in an interview with Oregon Sen. Ron Wyden, Roberts, when

asked what he had meant by " settled law, " said it " depends on the

bench on which you sit. " What may be settled for a circuit court

judge, the same may not be true for Justices of the Supreme Court.

 

Roe v. Wade, watch out!

 

Civil Rights

Roberts is not a friend of civil rights. Here are some examples:

 

 

-The Supreme Court ruled that if a school (Bob Jones University)

discriminated on basis of race, supporters of the school could not

deduct their donations as charitable contributions. Roberts wrote a

memo arguing the Reagan administration to restore a tax-free status to

Bob Jones.

 

-The Supreme Court held in the Charlotte-Mecklenburg case that it was

sometimes permissible to order busing to remedy school segregation.

Roberts wrote a memo supporting the proposal to strip the Supreme

Court of jurisdiction to hear busing cases. Roberts, then at the White

House, differed from his boss (Ted Olson) and argued that busing, by

causing " white flight, " promoted rather than remedied segregation.

 

-In 1981 he urged Attorney General Smith not to intervene on behalf of

Kentucky female prisoners who were discriminated against in job

training opportunities. Roberts argued that it would cost more if men

and women were treated equally, and in times of budget crises,

Kentucky might simply cut down the training program for both men and

women, even if it could afford to sponsor a program for men only.

Comparable worth

The law, to protect vulnerable women workers, requires " equal pay for

equal work. " But if the work is not " equal " in terms of skills,

responsibility, and so on, the employer can pay male-dominated skills

more than he pays female-dominated skills. Thus, a Denver Hospital

paid its groundskeepers (male) more than it paid its nurses (women).

The nurses asked the hospital to measure the worth of the job and set

the wages accordingly. Thus developed the concept of " comparable

worth. " In 1984, a judge in Washington ordered the state to adopt a

" comparable worth " program, and the state appealed. Three Republican

congresswomen wrote the White House urging that the government not

support the appeal. The correspondence was turned over to Roberts, and

he wrote counsel Fred Fielding that he " found it troubling " that the

congresswomen were so quick to embrace " such a radical redistributive

concept. " Their slogan may as well be " from each according to his

ability, to each according to her gender. "

 

Affirmative Action

Roberts opposed affirmative action. The programs were bound to fail,

he wrote, because they required " the recruiting of inadequately

prepared candidates. " (One wonders what his potential colleague

Clarence Thomas would say to this.)

 

Voting Rights

In Mobile, Ala., the city council members were elected at-large. Since

whites outnumbered African Americans in Mobile, all the elected

officials were white. African Americans filed suit, alleging the

at-large system denied them the effective right to vote. They wanted

election districts where they could elect some persons to represent

their own interests.

 

The Supreme Court ruled against them because they failed to prove that

those who originated the at-large system intended to discriminate

against the black voters.

 

Civil rights groups were outraged. Vernon Jordan wrote in an op-ed

piece, " Intent is impossible to prove ... local officials don't

wallpaper their offices with memos about how to restrict minority

groups' members' access to the voting booths. "

 

Bob Dole stepped in with a compromise: Litigants could prove

discrimination by proving that the authorities intended to

discriminate or the system had the effect of discriminating.

 

Roberts wrote memos opposing the Dole compromise. It would " lead to a

system of proportional representation, establish a quota system ... a

notion we believe is fundamentally inconsistent with democratic

principals. "

 

Apparently, he thought it better that the minority African-American

population goes entirely unrepresented.

 

Religion

The First Amendment prohibits the " establishment " of religion or

interference with the " free exercise " thereof. A " wall, " wrote

Jefferson, to separate church and state.

 

Roberts hacks away at Jefferson's wall.

 

In 1985, the Supreme Court held that it was unconstitutional for

Alabama to require " a moment of silence for meditation and prayer " at

the beginning of school (Wallace v. Jaffree).

 

Roberts wrote Fielding that this decision was " indefensible " and

suggested a Constitutional amendment to overrule the Wallace decision.

 

In 1991 he argued that it was OK for a rabbi to open a junior high

school graduation with a prayer. Parents of school children had objected.

 

For some years the Supreme Court's standard was to invalidate a

practice if either (1) its purpose was religious or (2) its effect

would advance religion.

 

Roberts urged the court to hold that " civil acknowledgement of

religion in public life does not affect the Establishment Clause "

under a new standard--religious programs are OK " as long as they

neither threaten the Establishment of an official religion nor coerce

participation in religious activity. "

 

The graduation prayer would not threaten the establishment of an

official national religion (as the Church of England), nor would it

coerce participation in a prayer as no one was compelled to attend the

graduation.

 

The Supreme Court rejected his argument by a vote of 5-4 with Sandra

Day O'Connor voting in the majority.

 

Death Penalty

In 1983, Chief Justice Berger suggested that Congress establish a new

super Court of Appeals to lighten the load of the Supreme Court.

 

Roberts wrote White House Counsel Fielding that this was a " terrible

idea. " He wrote that if the court was overworked, the remedy was " to

take fewer death penalty and prisoner-rights cases. "

 

Roberts was asked about the death penalty at his Court of Appeals

hearings in 2003. His only response was that the system would work a

lot better to the extent that defendants have adequate representation.

 

War Powers

In 1983, former Supreme Court Justice Arthur Goldberg wrote the White

House questioning the invasion of Grenada without a congressional

declaration of war as required by the Constitution. Roberts wrote back

that the invasion " is clearly acceptable as an exercise of executive

authority. "

 

Just this summer, Roberts, as a judge on the Court of Appeals for the

District of Columbia, held that the president has authority to declare

a person an " unlawful combatant and try him before a military

tribunal. The Geneva Conventions do not apply, and the President can

decide how the detainees at Guantanamo Bay are classified, what rights

they will have, who will judge them, how they will be judged, upon

what crimes they will be sentenced, and how the sentence will be

carried out. "

 

The Environment

Roberts is not a friend of the environment.

 

He argued in the case of Lujon v. National Wildlife Federation that

the federation lacked standing to challenge the Department of

Interior's decision affecting 180 million acres of public land.

Federation spokesmen said the case " limited citizen access to the

courts and we are troubled. "

 

Then, on the bench, he ruled that Congress had no authority under the

Interstate Commerce Clause to protect the Arroyo Toad. Why not?

Because, he wrote, the toad " for reasons of its own, lives its entire

life in California. " Under this rationale of interstate commerce

powers, not only is the Endangered Species Act at risk, but also the

Minimum Wage Law, the Civil Rights Act, and a whole concept generated

in the Roosevelt New Deal battles of the 1930s.

 

Children

When the Supreme Court struck down a Texas law that permitted school

districts to exclude children of illegal immigrants, Roberts took

strong issue and wrote that the Justice Department should have entered

the case on the side of Texas.

 

Then there is the case of Ansche Hedgepath. District of Columbia law

makes it illegal to eat or drink in subway stations. Adult offenders

are warned or receive citations. Not for Hedgepath. An officer saw her

eating a french fry and the 12-year-old girl was arrested, searched

and handcuffed. Her shoelaces were removed and she was taken in the

rear of a squad car to a juvenile processing center. There she was

booked, fingerprinted and detained until her mother arrived. She sued

to have the arrest record expunged. Was this an unreasonable search

and seizure under the Fourth Amendment?

 

Not so, wrote Judge Roberts. The policy followed here is " rationally

related to the legitimate governmental interest in ensuring parents

are notified of their children's transgressions. "

 

Patrick Leahy, ranking Democrat on the Judiciary Committee, recently

reported that Roberts, when working for Reagan, expressed extremely

radical views " on reversing decades of policies on civil rights,

voting rights, women's rights, privacy and access to justice. "

 

We can look forward to an exciting hearing.

Meanwhile, there are a number of commonly asked questions that require

attention. Here they are with tentative answers:

 

President Bush won two elections promising to appoint the likes of

Justices Scalia and Thomas to the Supreme Court. Why can't he just go

ahead and do it?

 

Because Article II Section 2 of the Constitution authorizes the

president to nominate ambassadors, Supreme Court justices and other

public officials. It requires the Senate's " advice and consent " to

finalize the appointment.

 

Our history shows that the Senate has utilized its authority by

withholding its consent to 28 persons nominated to serve on the

Supreme Court, including: John Rutledge, nominated by President

Washington in 1795; Roger Taney, nominated by President Andrew Jackson

in 1835; John J. Parker, nominated by President Hoover in 1930; Abe

Fortas, nominated by President Johnson in 1968; and Robert Bork,

nominated by President Reagan in 1987.

 

Roberts is certainly bright and seems to be a good, nice family man

who goes to church regularly. The American Bar Association says he is

" highly qualified " for the job. Why go into his political beliefs?

 

Because where he stands on gay rights, abortion, civil rights,

church-state relations, federalism, executive authority and so on will

tip the scales of justice in ways momentous to all of us.

 

Politics has always been a part of the nomination process--by the

president in making a nomination and by the Senate giving or

withholding its content. The Senate refused its consent to John

Rutledge because he opposed the Jay Peace Treaty with Great Britain;

Robert Taney because he opposed a federal bank; John J. Parker because

of his views on labor and race; Abe Fortas because of his liberal

opinions on the Supreme Court; and Robert Bork because of his

opposition to abortion.

 

Roberts seems to be a shoo-in. Isn't it better to give him a pass and

save energy for the next fight, replacing Sandra Day O'Connor?

 

No. It's not over 'til it's over. Caleb Cushing, nominated by U.S.

Grant, was defeated at the last minute. A clerk opened an old file

cabinet and discovered he had corresponded with Jefferson Davis during

the Civil War and recommended friends for appointments within the

Confederacy. Stanley Matthews, nominated by Rutherford B. Hayes, was

defeated when an old newspaper story came to light telling of his

ruthless enforcement of the Fugitive Slave Act. And who can forget the

last minute appearance of Anita Hill in the Clarence Thomas hearings?

 

Roberts seems to be a good man, and if he is rejected, might not the

next nominee be worse?

 

Yes, but remember that Nixon gave us Clement Haynesworth, rejected

because of his views on labor and race (plus a little ethics problem).

Then he gave us G. Harrold Casswell, rejected because he supported

segregation and was " incredibly undistinguished. " Then Nixon nominated

Harry Blackburn, who wrote the decision in Roe v. Wade.

 

Roberts was a lawyer. Wasn't he just doing what his clients paid him

to do?

 

This is the " just following orders " defense used by some of the Nazis

accused of war crimes. Roberts was not a " hired gun. " When he

completed his clerkship with Justice Rehnquist in 1981, all doors were

open to him. He could have joined the Peace Corps or any number of law

firms. He chose to join the Reagan revolution as special assistant to

Attorney General French Smith, a one-on-one position. There he was a

sounding board, writing policy memos. Then he moved to the White

House, where he was asked to make recommendations on legal and policy

matters. Then as chief deputy to Solicitor General Ken Starr, he

advised on what the government's position should be on all manner of

issues pending before the Supreme Court.

 

He had a wonderful résumé. He was not told what to do. He was hired to

recommend policies.

 

Roberts is Corporate America's " lawyer of choice " : the Chamber of

Commerce, Chrysler, NBC, etc. For Toyota, he argued that a woman

suffering from carpal tunnel syndrome was not necessarily disabled.

For the National Beer Wholesalers Association, he argued that Congress

had no authority to set a uniform drinking age of 21. On behalf of the

National Mining Association, he argued for " mountain top removal coal

mining. "

 

With all the doors open to him, this is the life Roberts chose to live.

 

Is he the kind of person Alexis de Tocqueville warned against?

 

Daniel H. Pollitt is professor of constitutional law emeritus at the

UNC-Chapel Hill School of Law.