Judge John Roberts will sit before a new jury beginning Tuesday, exactly seven weeks from the night President Bush nominated him to become a U.S. Supreme Court justice.
The Senate Judiciary Committee will probe his opinions and legal philosophy in hearings that are the next, and most important, step in determining if Roberts will ascend to the high court.
The hearings will be all the more dramatic for the fact that there hasn’t been a change in the court since 1994, when Stephen Breyer was confirmed. Roberts is the first nominee in this new information age, and interest groups on both sides have spent weeks digging up any useful tidbit on Roberts, and many that aren’t useful, and zipping them across the Internet in nano-second speed.
More than 50,000 pages of documents were dumped in one day, so there’s been plenty to parse, but some senators want more, from his tenure as deputy solicitor general for the first President Bush. The issue could become even more contentious next week, but we hope the White House will be reasonable and forthcoming.
So, what do we know about Roberts so far?
The documents released from his work as associate White House counsel in the early 1980s show a young conservative who was almost always pushing the right-leaning political themes of the day, sometimes in language that was too brash or too glib.
On affirmative action, Roberts wrote that he thought it was “constitutionally impermissable to grant preferential treatment solely on the basis of race to those who have not been proven to be victims of illegal discrimination.” He urged the Reagan administration to support laws barring the use of employment quotas to counteract discrimination and asked that legal filings by the Equal Employment Opportunity Commission be more closely scrutinized.
While Roberts was supportive of legislation to end quotas, he opposed any strengthening of women’s rights through legislation, and often used phrases like “the purported gender gap” and “perceived problems” of gender bias. He also urged President Reagan to oppose the Equal Rights Amendment then percolating in Congress.
Interestingly, he supported an effort to end the lifetime appointment of federal judges, saying that with term limits they “would not lose all touch with reality through decades of ivory tower existence.”
Roberts was a supporter of school prayer, a big issue at the time, but he didn’t hesitate to take on fundamentalist Christians who were then beginning to assert their political power (and are now among his most avid supporters).
He wrote in a 1984 memo that the Reagan administration already had incurred political costs “promoting the interests of fundamental Christians in general” and urged staffers to ignore a plea from Bob Jones University to intervene in an immigration case, according to The Washington Post.
“A restrained reply to his petulant paranoia is attached for your review, telling Jones, in essence, to go soak his head,” Roberts wrote.
He was very concerned with how the public might view Reagan, and wrote at least three memos criticizing a White House decision to give pop music star Michael Jackson a presidential award. He especially took umbrage with wording calling Jackson an “outstanding example” for American youth. “If one wants the youth of America and the world sashaying around in garish sequined costumes, hair dripping with pomade, body shot full of female hormones to prevent voice change, mono-gloved, well, then, I suppose ‘Michael,’ … is in fact a good example.”
His stance on Roe vs. Wade, whatever that might be, will take center stage in the hearings, and deservedly so. Sen. Dianne Feinstein, D-Calif., the only woman on the judiciary committee, has said it will be a litmus test for her.
In his writings, Roberts echoes the concerns of many conservatives that Roe vs. Wade, the landmark law allowing states to permit abortions, was built on shaky legal grounds that he referred to in one writing as the “so-called right to privacy.”
His supporters say his stance on abortion laws should be off limits, as if it was impossible to foresee what type of abortion-related cases could go before the court. They argue that Justice Ruth Bader Ginsburg was allowed to skip hot-button questions on abortion and the death penalty by saying she didn’t want to discuss her personal views on issues likely to come before the court. That way she could avoid the appearance of prejudging cases.
But everyone knew that Ginsburg wasn’t about to topple court precedent on these issues, while Roberts would succeed Justice Sandra Day O’Connor, who has been instrumental in protecting abortion rights. Attorney General Alberto Gonzales makes a sensible distinction when he says that Roberts could talk about his personal views on abortion, but not about “an issue or case that he may have to preside on.” O’Connor gave her personal view on abortion at her confirmation hearings but refused to say how she would rule, according to USA Today.
Some interest groups already have prejudged Roberts. On the right is Progress for America, a group that was created to support Bush’s nominee – no matter whom he nominated. On the left is People for the American Way, which has decided to oppose his nomination based on his earlier writings and what they think he might do.
That’s a slippery slope. Roberts should be judged on his qualifications, his integrity and his willingness to bring independent thinking to the bench. If his views or values are outside the mainstream, we will see the Senate debate take on a dramatic intensity. President Bush chose Roberts because his record, though scant, seems impressive and reasonable. He has the stage and ample opportunity to show the Senate, and the public, what sort of judge he would be.
