Roberts Watch: Commerce, Guantanamo, Gay Rights

Here at Sollicitudo Rei Socialis, I think we have all been trying to give Judge John Roberts, President Bush's nominee to replace Justice Sandra Day O'Connor, a fair hearing. Making a rare move, I've decided to withhold judgement instead of coming out with guns blazing against the nomination. My reason for this is a prudential judgement on my part that perhaps Roberts is not the extremist conservative that both conservative and liberal interest groups are depicting him to be, and I think it's important for us to wait for the Senate confirmation hearing before passing any kind of judgement either for or against him.

While we wait for the Senate confirmation hearing, though, I think it's important to keep an eye on what the media is (or isn't) saying about him. Right now there's some interesting news in the St. Petersburg Times about his view of the Constitution's Commerce Clause, some interesting news in the Australian Broadcasting Corporation (yes, Australian -- we're international, baby!) relating to a decision he made regarding Guantanamo Bay as a judge on the D.C. Circuit Court of Appeals, and some interesting news in the Los Angeles Times about some pro-bono work that Roberts did on a gay rights case. The former two stories I discovered via Air America Radio's highly informative Rachel Maddow Show, and the latter story I discovered via the Boi from Troy blog. Thanks for that, guys!

Okay, first up is the Commerce Clause. And this is not particularly good news. Apparently, Roberts takes a very narrow view of the Commerce Clause. Rachel Maddow has told her listeners to forget it when they hear "narrow view of the Commerce Clause," and instead hear: "He's trying to kill the government." There's something to be said for that. The Commerce Clause has often been called "the everything clause" of the U.S. Constitution, because it is the basis for much of the federal government's current regulatory policies. It was initially designed by the American founders to allow the federal government to regulate interstate commerce for the purpose of both free and fair trade among the states, but a broad interpretation of the Commerce Clause by the Supreme Court beginning about a hundred years ago has allowed the federal government to interpret the Commerce Clause so broadly that it allows them to regulate everything from civil rights to environmental protections, even if the regulations or protections in question only involve one state.

It seems to be the case that Judge Roberts takes an extremely narrow view of the Commerce Clause, which means that he would be likely to oppose most federal regulations, especially if they are based on the Commerce Clause (and most of them are). This has its ups and downs for liberals as well as conservatives, but the fact of the matter is that overturning precedent related to the Commerce Clause will overturn over a hundred years of federal regulation, which could turn the country on its head. This will affect all Americans, not just liberals -- even well-meaning conservatives will be adversely affected, and corporate big business would get the best fruits of a narrow view of the Commerce Clause while everyday Americans would get the short end of the stick. Thus, it is not a good thing that Judge Roberts takes a narrow view of the Commerce Clause. It lends credence to the belief that he has a libertarian/originalist judicial philosophy like that of Scalia or Thomas, and that's precisely what liberals don't want.

Let's travel now to Guantanamo Bay, where three federal prosecutors are asking to be transferred out of Guantanamo Bay because they say that the trials there are rigged. Let's bear in mind that this is not the ACLU, this is not even defense attorneys, this is the federal prosecution saying that these trials are rigged. In fact, a federal judge also found fault with these trials last November and blocked them. Unfortunately, they are now going to begin again within the next few weeks, and this is where Judge Roberts comes in. Because Judge Roberts (and two other judges on the D.C. Circuit Court of Appeals) decided last month that these trials look okay, overturned the lower court's ruling, and allowed the trials to proceed. Now, this is not to say that Judge Roberts intentionally decided to allow rigged trials to go ahead -- that would be saying too much. But it is to say that a federal judge believed there was a problem, and Roberts overturned that ruling. It now appears that he was very wrong, since federal prosecutors are in fact saying that the trials at Guantanamo Bay are rigged. Catholics must look at this very closely, because what's going on at Guantanamo Bay either borders on or actually is a non-negotiable issue for Catholics, because what's going on at Guantanamo Bay may be torture and a complete lack of due process. We don't want a Supreme Court justice who will allow either of those things.

I would also mention that this aspect of Judge Roberts' story lends credence to the belief held by some that the reason the Bush administration is appointing him has nothing to do with abortion and everything to do with the likelihood that he will rule to uphold unpopular and possibly unconstitutional policies created by the Bush administration, such as the policies related to Guantanamo Bay or the Patriot Act.

Finally, there's a story in the Los Angeles Times reporting that John Roberts did pro-bono work on a gay rights case. Most liberals would assume that Roberts worked against the gay rights activists, but au contraire. In actuality, Roberts did pro-bono work for the gay rights activists. What's more, this case led to the 1996 Supreme Court decision Romer v. Evans, a landmark decision that overturned a 1992 initiative in Colorado that allowed employers and landlords to exclude people from jobs and housing based on their sexual orientation. It is widely acknowledged by the gay rights movement as a landmark victory, which set a Supreme Court precedent in favor of legal protection based on sexual orientation. Now, some conservatives have noted that Roberts was an attorney at the time and that his work here cannot be misconstrued as his personal views. That's true, but the fact that this was pro-bono work does lead one to believe that this was more than just a case of an attorney taking a client's case. It's one thing to take a paid case for gay rights activists, it's quite another to do pro-bono work for them. This lends credence to the minority belief that Roberts may be a conservative like Justice O'Connor or Justice David Souter, a traditionalist/pragmatic conservative who respects the Supreme Court's judicial precedent and who believes that the court must work practically in our times despite the original intent of the founders.

It must also be pointed out that the three dissenting opinions in Romer v. Evans were Justice Rehnquist, Justice Scalia, and Justice Thomas -- all of whom conservatives hope and liberals believe that Roberts is modeled after, but all of whom were on the side opposing Roberts on this issue. This does, then, lend credence to the minority belief that Judge Roberts will not be a Supreme Court justice quite like Rehnquist, Scalia, and Thomas, even if he is a bit more conservative than O'Connor and Souter.

In summary, I am very concerned about Judge Roberts' view of the Commerce Clause, because a narrow view of the Commerce Clause by a majority on the Supreme Court could turn the entire country on its head. The Commerce Clause may in fact be the most important issue in this nomination, but it's also the one you'll hear the least about. Why? First, it's not politically sexy. Second, both Republicans and Democrats are owned by corporate power, and corporate power doesn't like a broad view of the Commerce Clause -- so you're not likely to hear any great number of Democrats, and certainly not any Republicans, grilling Roberts about his view of the Commerce Clause. I am also quite concerned about his judicial position regarding Guantanamo Bay, and I'm wondering if it's a sign that he will uphold other Bush security policies that I view as an unconstitutional infringement upon civil liberties and a violation against human rights. I'm cautiously optimistic about his pro-bono work in Romer v. Evans, but I'm hesitant to read too much into it at this time.

And so I am basically where I started: I don't oppose his nomination, but I don't support it either. I can't stress enough the importance of the Senate confirmation hearings. I can't stress enough how important it is that he get a fair and full hearing in which all questions are put on the table and then candidly answered, and I can't stress enough how important it is that the White House turn over all requested and relevant documents that relate to his career. The fact that his position on so many things is so ambiguous makes the Senate confirmation hearings all the more important, because he is without question a stealth nominee. The only question is whether he's a stealth nominee designed to get in under liberal radars, conservative radars, or possibly both.