July 26, 2005

Who Are You, John Roberts?

There have been a couple of troubling items in the news lately regarding Judge John Roberts, President Bush's nominee to replace Justice Sandra Day O'Connor on the U.S. Supreme Court. There has also been a more positive item, and I'll be covering that too.

First, we have the brouhaha over whether or not Judge Roberts belonged to the Federalist Society. Several mainstream media outlets, not to mention countless weblogs, had initially reported that Judge Roberts did indeed belong to the Federalist Society -- reports that were met with correction requests by Judge Roberts and the White House, who claimed that he was never a member. And yet the Washington Post obtained a copy of a Federalist Society Lawyers' Division Leadership Directory, 1997-1998, which listed Judge Roberts as a member of the Washington chapter's steering committee. Now the White House says that Judge Roberts has "no recollection" of ever belonging to the Federalist Society. Are we really to believe that Judge Roberts can't remember whether or not he served on a steering committee for the Washington chapter of this organization? I was born in the dark, guys, but it wasn't last night.

Judge Roberts and the White House have good reason to fear exposure of Roberts' membership in the Federalist Society. The Federalist Society is made up of lawyers who embrace an originalist/libertarian judicial philosophy, which is the kind of judicial philosophy that Democrats (and some moderate Republicans) will be searching for during the upcoming confirmation hearings. Democrats and moderate (shall we say, mainstream?) Republicans don't want a justice who embraces an originalist and/or libertarian conservative judicial philosophy, because such a justice would be most likely to overturn Roe v. Wade, Lawrence v. Texas, important civil rights precedents, important environmental precedents, etc., in favor of allowing the states to decide. Of course, there's nothing wrong with states deciding things -- but part of the reason that the courts exist is to prevent the states from creating a tyranny of the majority, which is precisely what the Supreme Court has done in the above-mentioned decisions.

And let's get this straight: This isn't just about Roe v. Wade. The Federalist Society has a distinct and consistent legal philosophy which flies in the face of decades of Supreme Court precedent. In the process of getting Roe v. Wade overturned, even those who are opposed to abortion may find that Judge Roberts will make decisions that they are extremely uncomfortable with. These decisions could affect all Americans' civil rights, especially people of color, in addition to affecting labor rights and environmental protections. This is serious stuff, and the Senate has to get to the bottom of it.

Moving on to the second item: The Los Angeles Times reports that Judge Roberts told Sen. Richard Durbin (D-IL) that he would recuse himself from cases in which the law requires him to make rulings inconsistent with his Catholic faith. Now, on its face, this sounds good to liberals -- it means that Judge Roberts may recuse himself from cases involving reproductive rights, gay rights, etc. But let's think about this for a minute. First, we have to ask ourselves the question: What would Judge Roberts consider to be a case in which the law requires him to make a ruling inconsistent with his faith? Would it be Roe v. Wade? Maybe not, not if Judge Roberts doesn't think that the law requires him to make a ruling that's inconsistent with Catholicism. In fact, if Judge Roberts is either an originalist or a libertarian conservative, or a combination of the two, he will likely not find support for Roe v. Wade in constitutional law. So this is somewhat deceptive, in that Judge Roberts may never find a schism between his judicial philosophy and his faith.

Taking it to the other extreme, what if Roberts finds inconsistency between what the law requires him to do and what his faith requires him to do quite frequently? The result could be that he will recuse himself from cases ranging from reproductive rights, to religious freedom, to capital punishment, to environmental protections, to private property cases -- all of which the Catholic Church speaks to. Many of these decisions were 5-4 rulings, with Justice O'Connor being the fifth person in favor of the majority ruling. If Judge Roberts recuses himself from a lot of these cases, the end result could be frequent 4-4 tie decisions. A tie on the Supreme Court means that the ruling of the lower court stands, which could make both conservatives and liberals quite unhappy in very many cases, depending upon the make-up of the various courts.

A couple of examples: 1) What if the 9th Circuit Court of Appeals were to once again rule that "under God" in the pledge of allegiance is unconstitutional, this case goes to the Supreme Court, and Judge Roberts recuses himself? The likely result would be a 4-4 tie decision, which would consequently result in the decision of the 9th Circuit Court of Appeals being upheld, which means that "under God" would be effectively ruled unconstitutional by the 9th Circuit Court of Appeals without the Supreme Court being able to intervene. This end result would make conservatives very unhappy. 2) On the other hand, what if (for instance) the 11th Circuit Court of Appeals were to rule that so-called "sodomy laws" are constitutional? Judge Roberts could recuse himself, a 4-4 tie decision could come about, and the 11th Circuit Court of Appeals' ruling that sodomy laws are constitutional would be upheld. This end result would make liberals very unhappy.

While Judge Roberts' pledge to recuse himself may look good taking it at face value, it could be quite a wolf in sheep's clothing -- he may never actually recuse himself, and if he does, it could cause pandemonium on our nation's highest court. Is that really what we want from an appointee to the Supreme Court? I don't think so.

Finally, a bit of good news: Joe Feuerherd of the National Catholic Reporter discusses the kind of activism characteristic of the Roberts household, this time from a rational and nonpartisan perspective. Feuerherd does mention Jane Roberts' involvement with the Feminists for Life, but he also mentions her involvement in the John Carroll Society, a nonpartisan Catholic lawyers' organization in Washington, D.C. She's also a board member of the Jesuit-run Holy Cross College, her alma mater, where a Jesuit colleague describes her as not being of the extremist brand. When it comes to the Feminists for Life, Feuerherd points out that they have always been less focused on overturning Roe v. Wade and more focused on simply pointing out the negative impact abortion has on women who make that choice. During Roberts' involvement with the Feminists for Life, the organization opposed a welfare cap that would have reduced benefits for women with more than two children, fought for child support enforcement, and worked for assistance to college-age women so that they could complete their education and bring their babies to term. Of course, there were also probably numerous legal interventions to restrict or overturn Roe v. Wade, as well, so that aspect cannot be underestimated.

Feuerherd also points out that Jane Roberts was involved in drafting an affidavit supporting an American Civil Liberties Union (ACLU) lawsuit against the Kentucky branch of the National Honor Society, which had barred pregnant girls from membership in the organization. So although it is clear that Jane Roberts is against abortion, and it is likely that her husband is likewise against it, their opposition to Roe v. Wade itself continues to be somewhat ambiguous. Every indication I have seen, especially from nonpartisan sources like Feuerherd, has indicated that Judge Roberts is indeed a conservative, but perhaps not the kind of conservative that would be considered an extremist. Again, though, as I've said in the past, we need to know more about him before we can make that kind of judgement.

What seems clear to me is that the Senate Judiciary Committee must be given all the time it needs to question Judge Roberts, and the Bush administration must cooperate fully with the Senate Judiciary Committee, so that the senators can find out on behalf of the American people whom they represent just what Judge Roberts is all about. All of the polls indicate that the American people don't feel they know enough about Judge Roberts, and it's the responsibility of the Senate Judiciary Committee to find out what he's about for the American people prior to consenting to the President's nomination. In particular, Judge Roberts' involvement with the Federalist Society will have to be examined, and his judicial philosophy will have to be articulated both by his candid answers to the senators' questions, and by the full release of all of his documents by the Bush administration. President Bush has done his job by nominating a candidate to replace Justice O'Connor; now he must help the Senate do its job in advising him and consenting to his nomination, by cooperating fully with the Senate Judiciary Committee. I hope and pray that he will do this.

(Hat tip to Joe Cecil, also a contributor here. I got much of the above information from his personal blog, In Today's News. Post it here, Joe, post it here!)