It's hard to know what's more disturbing about President George W. Bush's nomination of Judge John Roberts for a seat on the Supreme Court: the man's sparse paper trail or the loose leaves he's scattered along the way. Either way, the nomination should give pause, not just to women or African Americans but to all Americans who hold dear the Bill of Rights.
Let's begin with Roberts' women problem. As deputy solicitor general for George Bush Senior, Roberts presented two troubling briefs on matters having to do with abortion. In 1991, he served up the government's case before the Supreme Court in Rust v. Sullivan, arguing for the right to restrict the speech rights of family-planning organizations that receive public funding. The result of that decision upheld a gag rule on such organizations, denying them the right to mention abortion as one alternative to continuing a pregnancy. Note that we're not talking here about whether the organization in question can administer an abortion; we're talking about talk, or the mandatory lack thereof.
The full range of lawful options open to a pregnant woman is a thing of which one must not speak if federal dollars are involved. (Note that it's perfectly fine to impose with federal dollars, via the current president's “faith-based initiatives,” a theological balm for a troubled soul.)
If Roberts had merely addressed his brief to the government's pro-gag-rule stance, that would have been bad enough. But his brief addressed the legality of abortion itself, writing of Roe v. Wade, the 1971 decision that struck down laws prohibiting abortion, “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.”
Not entirely unexpected, the apologists might say, from a mainstream conservative. How mainstream, though, is Roberts' apparent support for the militant anti-abortion group, Operation Rescue? In 1993, a case was brought to the High Court by a group of abortion providers who accused Operation Rescue and six of its activists of violating a federal civil-rights statute by obstructing patients' access to women's health clinics.
In the case of Operation Rescue, the word “obstruction” was no metaphor; the health clinics referred to hard, physical reality. The group's activists, sometimes by the dozens, literally blocked, with their bodies, the entrances to women's health facilities. So menacing were Operation Rescue's tactics that other anti-abortion groups often kept their distance. (In fact, an Operation Rescue rally I attended in San Diego during the 1996 Republican national convention was deemed enough of threat to bring out a small army of federal marshals.)
The kicker to Roberts' role on behalf of Operation Rescue (Bray v. Alexandria Women's Health Clinic ) was that although the case did not involve the government, Roberts, deputy to then-Solicitor General Kenneth Starr, felt compelled to co-author an amicus curiae brief in support of an organization bent on terrorizing and demonizing pregnant women.
Just following orders?
In the immediate wake of the president's announcement of Roberts as his Supreme Court pick, Bush-loving wags were quick to point out that, in these two cases, Roberts was merely doing his job, expressing the views of his bosses in the administration. They point to Roberts' contention, in his 2003 confirmation hearing for his current seat on the U.S. Court of Appeals for the District of Columbia Circuit, to the Senate that he would have no trouble upholding Roe, being that it is the “settled law” of the land. On the Supreme Court, however, no law is ever truly “settled” in perpetuity, a fact that has yielded most of the societal advances of the 20th century. The potential for regressive decisions, however, is not out of the question.
Roberts is said, by colleagues all over the ideological spectrum, to be “thoughtful” and to be a man of integrity. I have no reason to doubt that. With such integrity as a hallmark of his personality, though, it's difficult to imagine Roberts simply acting on orders at odds with his conscience in the abortion cases he argued for the first Bush administration. Others speak to the fact that Roberts is truly a good guy with a good sense of humor. That doesn't mean I'd want to give him an opportunity to overturn settled law.
Roberts' anti-abortion ties don't end with him, either. His wife, Jane Sullivan Roberts, served for a time as an executive of the cleverly named group Feminists for Life, the entity responsible for the slick ad campaign, Women Deserve Better (Than Abortion), which targets college-age women.
Right of Scalia
If you're still of the mind that “maybe he's not so bad,” check out Roberts on the Bill of Rights. While the righties tout Roberts as a “strict constructionist” in his interpretation of the Constitution, it's hard to find the orthodoxy in his beliefs about the First Amendment, those several sentences that guarantee the right to free speech, a free press, freedom of association, the right to peaceful assembly, and the separation of church and state.
In 1990, Roberts fell to the right of Justice Antonin Scalia when he argued before the Supreme Court, on behalf of the Bush Senior administration, for the constitutionality of a law banning the burning of the American flag. Even worse, he acknowledged the act of flag burning to be “an expressive act” -- the sort of expression, however, that deserved to be banned. The court took issue, striking down the Flag Protection Act of 1989. Just last month, the House of Representatives passed yet another version of the act, and the Senate may very well follow.
On the matter of religious freedom, Roberts argued for the constitutionality of sectarian prayers at high-school graduation ceremonies -- again, rejected by the High Court.
Given his recent 2003 appointment to his first-ever judicial post on the federal D.C. Circuit, Roberts' judicial record is slim, but nonetheless disconcerting. He has shown himself to be ill disposed to affirmative action, and he's in the same league as Attorney General Alberto Gonzales when it comes to sanctioning the lack of legal protection for prisoners deemed “enemy combatants.” He's also drawn the ire of environmentalists with a decision to narrow the reach of the Endangered Species Act.
Playing the Catholic card
Despite his scary record, Roberts' nomination will not be easily derailed. If you give nothing else to the strategists in the Bush administration, you've got to admit, these guys are good. By all accounts, Roberts is a first-class lawyer. In choosing a Roman Catholic, Bush is betting he's bought himself some insulation -- any opposition to Roberts, particularly because of his anti-abortion record, will likely be countered with accusations of anti-Catholicism. A timely pitch, one must say, to conservative Catholic voters prior to the midterm elections.
Make no mistake, though: Sterling credentials or not, John Roberts should not be confirmed for a seat on the Supreme Court. He has demonstrated too little respect for the ideals of the Constitution's Framers. Democrats owe it to those who have stood by them, through thick and thin, to oppose this nomination. So go to it, Senators Durbin, Leahy, Kennedy, and Biden. Don't vote to let this nomination out of the Judiciary Committee on which you sit. Millions of liberal Catholics, and Americans of all stripes, are counting on you to vote your conscience.
Adele M. Stan is the author of Debating Sexual Correctness: Pornography, Sexual Harassment, Date Rape, and the Politics of Sexual Equality, and of the blog AddieStan.com.
