Washington – Since becoming a judge in 2003, John G. Roberts Jr. has been called to sit in judgment on the fate of a hapless California toad and on the claim of a 12-year-old girl who was handcuffed and hauled off to jail for the crime of eating a French fry on the subway.
Roberts sided with a real estate developer and against the toad and, although sympathetic to the terrified girl’s ordeal, rejected her lawsuit against the subway police.
It’s a measure of Roberts’ scant record as a judge that political activists from across the ideological spectrum are now debating his rulings in such colorful, but largely insignificant, cases following his nomination to the Supreme Court by President Bush. They have little else to go on.
“If he was a judge of 15 or 20 years, it would be a little different. You’d have a long record. But we don’t,” said Sen. Charles Schumer, D-N.Y.
Even some Republicans are wary. Conservative columnist Ann Coulter wrote in her Internet commentary that Roberts “is a blank slate. Tabula rasa. Big zippo. Nada.”
“Stealth nominees have never turned out to be a pleasant surprise for conservatives,” Coulter warned.
Senate Democrats and liberal groups insisted Wednesday that Roberts reveal his legal philosophy and beliefs when confirmation hearings are held later this summer. They vowed to seek “voluminous” memos and other legal work that Roberts drafted when serving as a deputy solicitor general and participating in cases on abortion and other contentious matters, for the first President Bush.
Meanwhile, liberal and conservative activists rushed to interpret, and extrapolate, decisions about toads and French fries.
“I don’t have an overarching, guiding way of reading the Constitution,” Roberts told the Senate at his confirmation hearing in 2003.
“I think different approaches are appropriate in different types of constitutional provisions.”
He added: “There’s no role for advocacy with respect to personal beliefs or views on the part of a judge.”
As the chief deputy solicitor general in the first Bush administration, Roberts put his name on a legal brief that argued that Roe vs. Wade, the 1973 case which established the right of abortion, had been “wrongly decided and should be overruled.”
But in his 2003 judicial confirmation hearings, he called Roe vs. Wade “the settled law of the land.”
Roberts is a member of the Federalist Society, which describes itself as a “conservative and libertarian legal and intellectual network” that believes “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”
Many conservatives say that Bush picked the right man.
“He’s got the brains. I don’t think it’s easy to get into Harvard, much less graduate summa cum laude; that’s impressive,” said Sen. Wayne Allard, R-Colo.
“We’re just very pleased by President Bush’s nomination for the court,” said James Dobson, founder of the Colorado Springs-based Focus on the Family.
Yet Roberts doesn’t have a record that allows Americans to surely conclude how he would rule on controversial matters such as abortion, the range and reach of federal authority, civil liberties or gay rights, say partisans of both left and right.
The absence of certainty has not kept partisans from offering opinions about the judge’s opinions.
The case of the endangered arroyo toad is a prime example. Lawyers for the developer contended that Congress exceeded its authority under the Commerce Clause of the Constitution, which gives the legislative branch the power to regulate interstate commerce, when protecting endangered species.
When a panel of the D.C. Circuit Court turned down the developer’s plea, his lawyers asked for a rehearing by the full court and were turned down 7-2.
Roberts was one of the two who dissented.
In a brief dissent, Roberts suggested that the developer may have had grounds to argue that the fate of “a hapless toad that, for reasons of its own, lives its entire life in California” does not qualify as a matter of interstate commerce.
The liberal Alliance for Justice has warned that the “hard-line” view Roberts expressed, “if taken to its logical conclusion,” could not only gut environmental laws such as the Endangered Species Act, but “threaten a wide swath of workplace, public-safety and civil-rights protections.”
But Robert A. Destro, a law professor at Catholic University in Washington, said that the brief dissent does not reveal the judge’s views on the species act, but rather reflects liberal fears that Roberts is a conservative who sees a limited judicial role.
Staff writer John Aloysius Farrell can be reached at jfarrell@denverpost.com.
Staff writer Anne C. Mulkern can be reached at 202-662-8907 or amulkern@denverpost.com.
