More on Roberts

Stolen from Volokh, commentary from the Alliance for Justice, compiled during his appointment to the DC circuit:

John G. Roberts, nominated by President Bush to a seat on the United States Court of Appeals for the D.C. Circuit, has a record of hostility to the rights of women and minorities. He has also taken controversial positions in favor of weakening the separation of church and state and limiting the role of federal courts in protecting the environment. The Alliance for Justice opposes his nomination to the D.C. Circuit.

Although Mr. Roberts is indisputably a very capable lawyer, that alone does not qualify him for such a prestigious and critical post. As a group of over 300 law professors stated in a 2001 letter to the Senate,1a lifetime appointment to the federal bench is a privilege that comes with great responsibility and requires much more. Every nominee bears the burden of showing that he or she respects and pledges to protect the progress made in the areas of civil rights and liberties, the environment, and Congress’ constitutional role in protecting the health and safety of all Americans. Mr. Roberts’ record, particularly his record as a political appointee, argues strongly that he would not do so.

While working under Presidents Reagan and Bush, Mr. Roberts supported a hard-line, anti-civil rights policy that opposed affirmative action, would have made it nearly impossible for minorities to prove a violation of the Voting Rights Act and would have “resegregated” America’s public schools. He also took strongly anti-choice positions in two Supreme Court cases, one that severely restricted the ability of poor women to gain information about abortion services, and another that took away a key means for women and clinics to combat anti-abortion zealots. [In rereading this post after posting it, I think that a personal disclosure might be advisable. I consulted pro bono for NOW on the case (Scheidler) that I think is being referred to here.]

Finally, Mr. Roberts is being considered for lifetime tenure on a court that is only one step below the U.S. Supreme Court and is acknowledged to be the second most important court in the country. His nomination must be considered in light of the special significance of that court. Moreover, Judiciary Committee Chairman Hatch’s insistence on scheduling three controversial Circuit Court nominees, including Mr. Roberts, for confirmationhearings on a single day ensured that senators had no meaningful opportunity to question Mr. Roberts about his views on a number of critical issues. The Alliance for Justice urges the Senate to reject his confirmation.

Norbizness is resigned about the nomination. I’m terrified.

This is so troublesome. Please contact your federal representatives. Now.

This is an activist judge.

18 comments for “More on Roberts

  1. Jon
    July 19, 2005 at 9:56 pm

    A judge who, by all accounts, is more than eminently qualified for the position, who has been supported by prominent members of previous Democratic administrations and members of the DC bar, and who was confirmed not 2 years ago to the nation’s second-most influential court by a unanimous Senate after receiving an affirmative vote out of the Judiciary committee from no less a feminist superstar than Dianne Feinstein…and not two hours out the left-wing groups are already bending over backward to paint him like some kind of extremist.

    All I have to say is…C-SPAN is going to be very, very interesting for the next few months.

  2. July 19, 2005 at 10:11 pm

    I think Norbizness is right. Seems like there’s no ROI on fighting this one. Maybe it’s better to save resources for opportunities where we can make a difference?

    That being said, I did fire off a message just now to my non-voting Congressional delegate.

  3. July 19, 2005 at 11:21 pm

    Please don’t think I’m commenting in an attempt to pick a fight. I said that I oppose abortion in another comment here, but I do have a question that I’d like to ask.

    Why is there the perception that if Roe v. Wade is overturned, that abortion would be illegal? The only thing that SCOTUS could do in reversing that decision is establish that individual states could set their own policies regarding abortion. The potential outcome would be that some states would pretty much ban abortion altogether, others would allow early (perhaps first trimester) abortions only, and others would keep things exactly the way they are now (potentially even relaxing laws further). States could actually, I think, enact laws that would protect abortion even before any decision is made from SCOTUS. That seems like it would be a prime goal for NARAL–to secure some states that would preserve legal abortions, regardless of a Roe v. Wade ruling, especially since such a ruling may well occur within the next 10-15 years.

    I personally think the more powers left to the states and the people, the better. I’m quite tired of being micro-managed by the federal government. Wouldn’t the decision on abortion be better left to people who are more connected to their constituency than the goons in Washington?

    Okay, that’s more than one question. Still, I promise to be civil in any dialogue, and hope that you will be too. I’m not trying to pursuade or to inflame, just to get the “other side” of the argument, because I really don’t understand the focus on the singular court decision.

  4. July 19, 2005 at 11:37 pm

    BD: That’s the David Brooks argument that I heard several months ago. The same argument was advanced after Brown v. Board of Education, similarly maligned as a bad Supreme Court decision construing the 14th Amendment, taking power away from the states. If you didn’t like micromanagement in that era, you would have also been opposed to the Civil Rights Act/Voting Rights Act. In that alternate history, I’m pretty sure that separate but equal would still exist in a large number of SOuthern, and maybe even a few Northern, states.

    Practically speaking, I’m in Texas. As far as I can tell, women in Austin would probably have to travel 1000 miles or more to get a legal abortion, because New Mexico clinics would have a 5 year waiting list.

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  6. July 20, 2005 at 1:47 am

    If indeed Americans support abortion rights (which I think they do), then Congress should be able to advance legislation to protect it. While I’m pro-choice I don’t think Roe is as crucial as it’s being touted to be. As a general rule, I think single-issue litmus tests distort the integrity of the high court. Abortion rights shouldn’t be an issue of constitutional interpretation. It’s an issue of law and belongs in Congress.

  7. July 20, 2005 at 4:04 am


    It’s a fair question, and one that I’ve heard asked many times. The problem, as Norbizness stated, is that leaving the decision to state legislatures would indeed make abortions nearly impossible to obtain for millions of women. Women like me, who live in New York, wouldn’t have a problem, but women through most of the south and the midwest would be out of luck. So it comes down to something of an equal protection / equal access issue: Do all American women deserve the right to control their own reproductive capacities, or do only women who happen to live in pro-choice states (or are wealthy enough to travel to pro-choice states) deserve that right? “States rights” have unfortunately been used to advance some of the worst, most discriminatory policies in the history of this country, starting with slavery and continuing on through school segregation and reproductive rights. Roe v. Wade is important because it does what Brown v. Board of Education and so many other important civil liberties cases have done: it protects an under-represented group, and give them equal access to the basic rights that all Americans deserve.

    So abortion shouldn’t be left to the states for the same reason that interracial marriage laws or school segregation laws shouldn’t be left to the states — because when the states make decisions on these things, they inevitably discriminate against a particular group of people. It’s not “equality” if I can control the number and spacing of my children, but Lauren in Indiana isn’t allowed to because of where she resides.

  8. July 20, 2005 at 5:14 am

    As a general rule, I think single-issue litmus tests distort the integrity of the high court. Abortion rights shouldn’t be an issue of constitutional interpretation. It’s an issue of law and belongs in Congress.

    Isn’t the role of the Supreme Court to interpret U.S. law within the framework of the Constitution? The “it’s an isue of law” argument could be made (and has been made) for a whole lot of civil liberties issues, with “state’s rights” often being the call for discrimination — just look at slavery, school segregation and interracial marriage.

    And I don’t think that asking a potential Supreme Court justice if he believes in the basic concept of a Constitutionally-protected right to privacy — indeed, asking him if he believes in the law of the land — is a “single-issue litmus test.”

  9. July 20, 2005 at 10:25 am

    I, too, would feel more comfortable if the right to an abortion was upheld through legislation (or – hah! – a constitutional amendment) than through Roe, which rests on logic that I think is, at best, open to debate. And I think that if Roe is overturned, the public outcry will force Congress’s hand.

    The problem is that in the current political climate, no law could be passed protecting reproductive rights, as the religious right is quite exercised at the moment. Moderate America is doing what it always does: it sleeps, and won’t awaken until extremists step on its toes. I don’t believe abortion rights are in danger in the long run, but if Roe is overturned in the near future I see a chaotic transition period. Those who need abortions will fall through the cracks.

  10. Jon
    July 20, 2005 at 11:03 am

    I think the discussion of the possible effects of overturning Roe v. Wade is somewhat moot in a conversation about John Roberts acceding to SCOTUS, seeing as even if he is confirmed the court will still be split 5-4 pro-Roe. Stenberg v. Carhart (i.e. partial-birth abortion), however, could be a different matter, but really, aside from the extreme feminist fringe and the abortion lobby not too many people will be sad about that precedent being reversed.

  11. July 20, 2005 at 11:09 am

    Isn’t the role of the Supreme Court to interpret U.S. law within the framework of the Constitution?

    Yeah, but what issue of law applies to reproductive rights? There’s no relevent statute to interpret. And I’m not talking about States’ rights, I’m talking about Congress passing legislation.

    I don’t think that asking a potential Supreme Court justice if he believes in the basic concept of a Constitutionally-protected right to privacy — indeed, asking him if he believes in the law of the land — is a “single-issue litmus test.”

    The association of right-to-privacy with reproductive rights is weak at best. The decision itself isn’t particularly rigorous. Wouldn’t it be a much better use of time, effort, and money to fight for legislation than trying to block court nominees?

  12. July 20, 2005 at 11:42 am

    I sincerely appreciate the input, and greatly appreciate the fact that they were quite cordial. If you’ll indulge a little diversion from the issue at hand, something keeps coming up that I’d like to address.

    I sincerely believe that the framers had a vision of the sovereign states coexisting with significant differences in their respective laws and regulations in the areas not explicitly addressed in the constitution.

    That leads naturally to the correlation that has been made here between states’ rights and segregation. Segregation, even in the South, would have had a severely limited lifespan, had SCOTUS not interfered with Plessy v. Ferguson. This allowed the institution of segregation to exist for over a generation, until it the court forcibly abolished the very institution it had previously protected. I realize that one can “what-if” every event in recorded history, but I will always believe that without Plessy, the struggles and violence of the Civil Rights Movement would never have been necessary.

    Again, I know that’s a significant digression, but my point is that I feel that the individual states are more equipped to deal with the concerns and problems of their own populace.

    The “money” argument made is weakened by the fact that abortions aren’t exactly low-cost now, especially for someone living at or below the poverty level, those who (financially, at least) could significantly benefit from the abortion of an unwanted pregnancy. In other words, the cost alone already prevents many mothers-to-be from terminating their pregnancies, and I don’t see the cost of travel being significant against the cost of the procedure. A round-trip airline ticket to anywhere within the 48 contigious states still costs less than an abortion. And, as a parent of five (including a set of triplets), I know that even if the costs were quadrupled, abortion would still cost less than raising a child.

    For one more little sidebar, I would be much happier if the adoption process were refined and streamlined significantly prior to any movement to reduce accessibility to abortion, and I think research towards zygotic transplantation would be beneficial. A pregnant woman who doesn’t want to be pregnant gets her wish, another who does want a baby gets hers, as well, and the woman who would have gotten an abortion doesn’t have to pay for the procedure. I don’t oppose a right to choose, but more choices should be available.

    As I said before, I do oppose abortion as a practice. I do not, however, think whether it is legal is within the realm of the federal government’s powers to decide. I also don’t think the government, or the people that constitute that government need to go rushing into a major change without preparing sufficiently for that change.

  13. Thomas
    July 20, 2005 at 1:57 pm

    BoDiddly, at the inception, there were competing visions for the relationship between the states and the federal government (See, e.g., Alexander Hamilton). Several issues, especially the shape of the U.S. economy and slavery, drove people to various positions in this debate.

    First, I dismiss out-of-hand that any significant body of people outside academia (and even there, really) ever cared about states’ rights qua states’ rights. It has always been “procedural sharpshooting” and “forum shopping” for substantive issues.

    Second, the conception of the states as the critical, unsubordinated sovereign died at the foot of Little Roundtop, where the future Governor of Maine stabbed it to death with a bayonette. It was buried at the ratification of the 15th Amendment. The Reconstruction Amendments permanently altered the balance between the federal and state governments. As to that question, the framers’ intent is irrelevant. The original document has been amended.

    Finally, the work done so far on the potential consequences of a Roe reversal concludes something like a majority of states outlawing abortion completely, and many more imposing significant restrictions. Add this to access limits and state laws that bar crossing state lines to terminate, and the on-the-ground impact is huge.

  14. kathy
    July 20, 2005 at 2:18 pm

    Stenberg v. Carhart (i.e. partial-birth abortion), however, could be a different matter, but really, aside from the extreme feminist fringe and the abortion lobby not too many people will be sad about that precedent being reversed.

    I would be very upset if that were reversed. And I don’t consider myself extreme feminist fringe or part of the abortion lobby, either. Honestly, late term abortions are much rarer that the anti-choice organizations would have us believe. No woman (at least not any that I know) is going to get to be 6-7 months pregnant and then terminate without a really good reason, i.e. serious defects in the fetus, major health issue for the woman or, in cases of minors in conservative states, being denied access earlier on. Even if she just doesn’t want to be pregnant, that’s her business too, although I still find it hard to believe that in that case it wouldn’t have been taken care of much earlier if it could be.

    Whatever the situation, though, anything inside my body falls under my jurisdiction, including and especially if I’m pregnant.

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  16. July 20, 2005 at 8:50 pm

    I didn’t expect our president to pick anyone who would be neutral toward Roe v. Wade because he owed the extreme right wing too much. I’m finding myself more in agreement with Roxanne and Norbizness that we can’t let this one distract from all the other horrors going on – Rove, Iraq, etc.

    However, I am so, so, so mad that what the administration is using to distract us affects me – and my uterus – so much. I feel tricked! I’m definitely going to write a letter to my reps/senators/etc. (and, actually, Jon, I’m not a huge fan of Feinstein), but where I am I don’t feel like I have much pull.

    I think that the only way to turn it over is if more women got together and made a collective call to protect Roe v. Wade. We just have to get louder!

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