Wednesday, July 20, 2005

Opposition to Roberts is on Weak Ground

The speed and efficiency of the opposition to John Roberts’ nomination to the Supreme Court leaves me wondering if liberal groups are opposing John Roberts or opposing the very notion that conservative judicial philosophies have a place on the Court.

Don’t get me wrong, the criticism is quite targeted. Take’s statement which says:

In nominating John Roberts, the president has chosen a right wing corporate lawyer and ideologue for the nation's highest court instead of a judge who would protect the rights of the American people. Working for mining companies, Roberts opposed clean air rules and worked to help coal companies strip-mine mountaintops. He worked with Ken Starr (yes, that Ken Starr), and tried to keep Congress from defending the Voting Rights Act. He wrote that Roe v. Wade should be "overruled”...

But the thing is, any nominee chosen by Bush would have a history of advocating judicial views contrary to what the left would prefer. Does that make every and any conservative justice unqualified? Are Scalia and Thomas unqualified? I’d wager many liberals would say yes.

Take the ACLU’s statement released before a nominee was known. They said they were concerned that Bush would choose “a nominee whose judicial philosophy is fundamentally opposed to the progress made in protecting individual rights over the past century.”

This is disingenuous. Just because someone opposes using the Supreme Court as the primary means to advance individual rights not delineated in the Constitution does not mean he or she is opposed to using other means to advance those same individual rights. One can think Roe v. Wade is a bad ruling from a Constitutional standpoint but still want abortion to be legal.

We hear all the time that conservative justices will lead us to segregation, the elimination of workers rights, child labor, imprisonment of homosexuals and a universal ban on abortion—to name a few evils. But that kind of talk is just playing off the tired and untrue “conservatives are evil” propaganda. A conservative Court would not seek to impose such a dark vision.

What it would do is restrict the federal government’s ability to impose rules and regulations in situations where the Constitution gives the federal government no authority to act. Yes, that could, for example, have the effect of giving states the right to abolish worker protection laws or openly discriminate against homosexuals, but it would not prohibit a state from passing its own worker protection laws or advancing broad rights for homosexuals. Nor would it prohibit the passing of a Constitutional amendment to broaden federal authority or advance individual rights.

I believe that the federal government has a vital role to play in our nation. What I don’t believe is that, should its current role be diminished, all hell will break lose. The Supreme Court is not the end-all-be-all for what individual rights we do and do not have. And just because a justice believes in a judicial philosophy that would limit federal power does not make him or her unqualified to serve.

There is room on our Supreme Court for jurists of varying judicial philosophies. To believe otherwise is to believe that there is only one obvious interpretation of the Constitution. That is wrong. And if those who oppose Roberts want to gain any traction with their effort, they’re going to have to offer more than cries of “he disagrees with us, therefore he is unqualified.”

Fact is, from all we know, justice Roberts is quite qualified. Groups like are fighting a losing battle because their complaint isn’t with Roberts, it’s with the whole scope of conservative judicial philosophy. They certainly have a right to stand-up for what they believe, but their money and efforts might be better spent working towards Constitutional amendments and state laws that would cement our rights in more solid ground than a Court ruling.

As someone who is a strong supporter of individual rights, I am sympathetic to the concerns of many of these liberal groups. But I can’t in good conscience oppose Roberts. Instead, I will seek other more substantial means to ensure our individual rights remain plentiful.


At 7:12 AM, Blogger Ted Carmichael said...

I have to say, I certainly expected the left to come out swinging, and they didn't disappoint. So I'll take those arguments with a grain of salt. But I am concerned that President Bush has picked someone with very little experience as a judge. Maybe his law school and private practice credentials alleviate that, but I'll have to read more.

The interesting thing is, from what little I've read, I tend to agree with Roberts. Now I wouldn't overturn Roe whole cloth ... there is something decidedly constitutional about keeping the government out of a woman's personal choice. But the unborn inherits rights of protection well before the 9th month, and the right to privacy, at some point, must give way to the right to life.

As for the flag-burning issue, making it illegal is certainly unproductive. You can't - or at least, shouldn't try to - legislate respect for the government, or common values, or whatever. Even a carefully written law would be easy to get around. Imagine a flag that looks almost, but not quite, exactly like ours being defiled. I imagine a ridiculous escalation of refinements and challenges to such a law.

But unconstitutional? I'm not sure. The flag is a unique symbol of America, and the dissenters point out that the law's objective is to protect that symbol (however misguided that may be), not to impede whatever message the protesters intend to convey.

Yet the libertarian in me says it's my bloody property and I can do with it what I want, so bugger off. So chalk one up to 'conflicted' - a stupid law that might still be constitutional.

There's also the issue of blocking abortion clinics. The charge that he disagreed with is that doing so represents discrimination against women. I also disagree ... the fact that they are women has nothing to do with the protest, except inasmuch as the definition of a pregnant person pretty much means they are all women. There are plenty of other crimes to charge the protestors with - discrimination isn't needed, nor is it logical.

The important point is, does Roberts really discriminate the law that way, or was his analysis colored by his conservative views. This is the most important point, since interpretation of the law is highly malleable, especially for one with such high marks for his legal training and experience.

I believe - and again, I've only read a little, and plan to keep reading - that his ideology does interfere with his consistent interpretation of the law and the constitution. This is a preliminary conclusion that I draw based on two of his positions. He supports the idea that a 'gag' rule regarding abortion can be applied to federally funded programs. He also questioned the constitutionality of the Endangered Species Act under the commerce clause.

Now the commerce clause is the most abused clause in the entire constitution. For years, the clause that gives Congress the right to regulate commerce "among the several states" was interpreted to mean between the states. It was later changed to mean, also, within the states. And it has since been expanded to allow regulation of all kinds of things, and the Supreme Court has held that commerce doesn't even have to be the primary motivation of such regulation.

A lot of good things come out of the commerce clause, of course. The FDA is just one example. Minimum wage is another. But it's also how the federal government can exercise power that was not granted it by the constitution. It's basically a loophole. So for Roberts wanting to put limits on that loophole indicates a certain strict interpretation of federal powers.

But then there's the gag rule. The federal government can't regulate free speech, so if they want to implement a gag rule on private counselors, they need another loophole. Hense the requirement that federal funds comes with a caveat, one that forbids the doctor or counselor from even mentioning abortion as a possibility. The fed can't limit free speech, so they instead bully by witholding funds.

Roberts is certainly against Roe v. Wade - he said as much - and is probably (though not stated as far as I know) morally opposed to abortion. So he has, in one case, argued to limit federal power, and in another argued to extend it. And the similarity in these types of federal powers seems to indicate that his ideological motivation can usurp any legal consistency.

Well, that's a first pass. I'm still keeping an open mind, but so far it doesn't look good.

At 8:16 AM, Blogger Alan Stewart Carl said...


Roberts is certainly not who I would have chosen. One of the big problems is that most of his "positions" were actually briefs written for clients. So how much do they reflect his opinions and how much do they reflect the opinions of his clients?

As for experience as a judge. I'm unconcerned. Until the last 30 years, many Supreme Court justices were chosen who weren't first judges. Earl Warren was governor of California, for instance. I think somone can be a good jusge without having sat on the bench before.

In the end, it seems (although it's hard to tell) that Roberts is very much like Rehnquist. Certianly someone who is to my right, but not someone who is a radical.

At 9:03 AM, Blogger Sonny said...

The danger, IMHO is not the on going culture war, Roe v Wade, etc. I think the GOP likes the culture war it's their fundraising bread and butter. It's their moral cover for an anti-consumer, anti-worker, pro-investor, pro-corporate agenda. The danger of most any Bush nominee is that we get a corporate shill that will work to destroy worker protections and environmental regualtions among many other concerns.

At 9:09 AM, Anonymous Charles Amico said...

I wrote this excerpt below on my blog and I agree with you:

"Being a centrist, I do have an opinion on this nomination of Judge John Roberts. The President deserves to have this candidate as a Supreme Court Judge. He won the last election. Those that object and didn't vote in November of 2004, be quiet and reflect on why you didn't vote. This is the consequence of that choice. Maybe if we have more consequences that upset folks, voting will become more important to more people. Now is not the time to complain. You had your chance to voice your concern then. It was clear during the election that the next Supreme Court nominations that would affect us all, would be made by the next President. So the people have spoken, at least those that voted."


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