[Mb-civic] John Roberts: A Chill Hearth

[ean at sbcglobal.net]

Roberts' Chill Heart
The Nation, August 16th
by Bruce Shpiro

http://www.thenation.com/docprem.mhtml?i=20050815&s=shapiro

      Is Judge John Roberts worth a fight? That's the question Senate
Democrats and civil rights lobbyists were asking as the amiable nominee
made his let's-get-acquainted rounds on Capitol Hill. To put it bluntly:
With Judge Roberts's reputation as a skilled and unimpeachable Supreme
Court litigator, with his long bipartisan list of Washington friends, with
George W. Bush sure to appoint another conservative if he's defeated, why
bother?

      Call as witness Ansche Hedgepeth, a 12-year-old girl who in 2000
      made
the mistake of eating a french fry on the Washington Metro while police
were in the midst of a quality-of-life crackdown. Officers arrested
Ansche, handcuffed her, threw her in the back of a squad car and kept her
in lockup for three hours. This big-government approach to childrearing
offended Ansche's mother as well as the conservative Rutherford Institute
of Virginia, which sued on her behalf. The case ended up before Judge
Roberts, who refused to expunge her record. Why? Arresting Ansche, he
wrote, advanced "the legitimate goal of promoting parental awareness and
involvement with children who commit delinquent acts."

      How will this judge, who endorses the manacling of a youngster over
      a
snack, rule when confronted with the profound civil liberties challenges
of the "war on terror"? We don't need to speculate. The day after his
interview with Bush, Roberts and two other Reagan/Bush appointees on the
DC Circuit reinstated military tribunals at Guantánamo--ruling that courts
have no authority to review the White House's determination to deny those
prisoners Geneva Convention protections.


Together these two very different cases give the lie to any suggestion
that Judge Roberts lacks a track rec­ord. Enthusiastic expansion of the
power of the executive branch, whether in the guise of policing or the
presidency, is the most consistent thread of Roberts's career. In this
sense he's no conservative; he's an apostle of big and often unreviewable
government--the perfect nominee for a White House that excluded military
lawyers, the State Department and even John Ashcroft's top aides from the
inner circles of post-9/11 justice policy. The Guantánamo ruling was a
stunning embrace of the Administration's expansive view of presidential
power, placing the Guantánamo tribunals beyond reach of Congress or
courts. It is a refutation, as well, of international law, stripping
courts of the ability to enforce a treaty, with backwash over other key
cases destined for the Supreme Court. Detainees in Guantánamo held without
charge have cases coming before the DC circuit in a few weeks, and José
Padilla, the American held in the brig as an "enemy combatant," is not far
behind. No wonder Roberts--wired for life into the GOP patronage
network--became the Administration's top choice.

Another lie about Roberts's nomination is the notion that his most
contentious statements should be written off as a lawyer's responsibility
to his clients, not reflections of personal conviction. Exhibit A in this
argument is Roberts's now-famous footnote in Rust v. Sullivan, the 1991
health clinic "gag rule" case in which he argued as deputy solicitor
general that Roe v. Wade was "wrongly decided and should be overruled."
Just doing my job, just reflecting Administration policy, Roberts said in
his 2003 confirmation hearing as an appellate judge--a line repeated by
Republicans and Democrats alike in recent days. In fact, the Rust v.
Sullivan footnote went so far and so enthusiastically outside any argument
relevant to the case that Roberts might fairly be accused of politicizing
his briefs. But leave that aside. The real issue is that Roberts was
hardly a passive receptacle, a mouthpiece without conviction. At the time
of Rust v. Sullivan Roberts had been designated by Ken Starr as his
"political" deputy--running interference on sensitive policy issues that
otherwise would have been left to career officials. It was a job that
didn't exist in either the Carter or Clinton administrations. The White
House and Starr trusted Roberts not just to reflect legal policy but to
make it.

Which gets us to another lie. At this writing the White House has agreed
to release some historical documents from the Reagan years, but it claims
that Roberts's memos as deputy solicitor general are a matter of
attorney-client privilege. But attorney-client privilege ends where
policy-making begins. The Judiciary Committee has every reason to wonder
about the role of the political deputy. Senators have every reason to
inquire about the language Roberts used when crafting that argument
against Roe. The reasoning a Supreme Court nominee brought to fighting
against strong Voting Rights Act enforcement, to ending school
desegregation and to stripping Congress of oversight of federal
environmental enforcement are all matters of public concern.

Roberts's professional biography suggests that every political choice he
has made has been partisan and often rigidly ideological, from his
clerkship with William Rehnquist through his role as a Republican adviser
in Bush v. Gore. (Memo to Judiciary Committee: There's nothing out of
bounds in asking Roberts's view of that case and whether he thinks the
Supreme Court majority's ruling amounted to judicial activism.) Vigorous
opposition to Roberts offers a powerful lesson on the intersection of
politics and law in Bush's Washington. Bush may not have had a "litmus
test" on Roe v. Wade, but he was precise about the political chemistry of
his nominees. It's revealing that virtually all those floated as Supreme
Court finalists were members of the Federalist Society. Roberts may
not--or may--have been a member (at this writing the White House uses the
deniable "no recollection" to explain why his name shows up in the group's
confidential leadership directory for 1997-98), but between 1999 and 2003
his main professional association was with the fiercely antiregulatory
National Legal Center for the Public Interest. As a judge he's written
that the Endangered Species Act should not apply to a California toad
because it doesn't cross state lines--a view of federal authority so
extreme it would prohibit the EPA from getting involved in purely local
landfills or chemical dumps.

Is Roberts's confirmation a foregone conclusion? There are still several
weeks before hearings and a likely Senate vote, and his would not be the
first nomination to take an unexpected turn. At this point in 1991 the
Clarence Thomas nomination seemed unassailable, and in 1986 few seriously
believed that Robert Bork would go down to defeat. Roberts's record and
his biography may yet reveal additional troubling details.

Is it worth expending energy, emotion and money to oppose Roberts? Let's
return to Ansche Hedgepeth and her french fry arrest. It may seem absurd
to suggest that such a trivial case disqualifies a judge from a seat on
the Supreme Court. Yet Roberts, in that case as in others, embraces a
quietly authoritarian vision of social control that should raise alarm
bells on both the right and the left. Managing to wring out of the law any
vestige of sensible, pragmatic humanity, Roberts saw instead only the
imperative to maintain ideological consistency. This is not "compassionate
conservatism." If "advise and consent" means anything, it is that senators
and the constituencies that agitate behind them have every reason to
oppose a lifetime Supreme Court appointment for that kind of chill heart.


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   ---   George Orwell


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