I am tired of hearing about what a witty and irascible character John G. Roberts Jr. is, how Roberts, George W. Bush’s nominee for the Supreme Court, is such a sophisticated–if curmudgeonly–cut-up. There have been numerous newspaper stories that depict Roberts in such terms on the basis of the memos he penned when he worked for the Reagan and Bush I administrations. Yesterday the New York Times front-paged a cute account of Roberts’s penchant for proper punctuation. It noted that twenty-three years ago, when he worked for White House counsel Fred Fielding, Roberts was taken with a letter written to the White House because its author, an octogenarian lawyer concerned with an obscure jurisdictional matter, had quoted Plato and Webster and used the word “slumgullion (which means thin stew). This correspondent, Roberts declared, deserved a reply. What a fellow, that Roberts!
I’m more concerned with the content–not style–of his memos and a decades-long trail that shows Roberts has usually favored a narrow reading of rights (such as the “so-called” right to privacy). These memos also suggest he has a tendency to put his intellectual arrogance at work for a political agenda. One memo he co-wrote in 1985 shows that Roberts was not shy about interjecting his own view into policy-making, even if that view had no basis in fact.
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In this September 13, 1985, memo, Roberts, who was still in Fielding’s office, wrote about briefing materials that had been prepared for President Ronald Reagan. The material covered several subjects, including the dispute over admitting children with AIDS into public schools. Roberts wrote:
The third bullet item contains the statement that “as far as our best scientists have been able to determine, AIDS virus is not transmitted through casual or routine contact.” I do not think we should have the President taking a position on a disputed scientific issue of this sort. He has no way of knowing the underlying validity of the scientific “conclusion,” which has been attacked by numerous commentators. I would not like to see the President reassuring the public on this point, only to find out he was wrong later. There is much to commend the view that we should assume AIDS can be transmitted through casual or routine contact, as is true with many viruses, until it is demonstrated that it cannot be, and no scientist has said AIDS definitely cannot be so transmitted. I would simply delete the third bullet item.
Here Roberts was not being merely prudent. Believing he knew best, he was substituting his uninformed opinion for the scientific consensus. Three years earlier, the Centers for Disease Control had declared, “Airborne spread and interpersonal spread through casual contact do not seem likely.” And weeks before Roberts wrote this memo, the CDC–after several years of additional research–had noted that children with AIDS attending public schools posed an “apparent nonexistent risk of transmission.” The CDC noted that “casual person-to-person contact, as among schoolchildren, appears to pose no risk.” At that time, Dr. Martha Rogers, an epidemiologist at the CDC’s AIDS branch, told the media, “The reasons I’ve seen given for keeping [children] out [of public schools] are not very good reasons. We’re trying to educate people as to the real transmission modes.”
Apparently, Roberts needed such educating. Instead of sticking to the known facts and heeding the word of government scientists, Roberts thought he knew better, and he was willing to substitute his own judgment (which happened to coincide with that of Reagan supporters who were arguing against allowing kids with AIDS into public schools) for the informed conclusion of experts. Yes, this was an isolated episode. But so was Roberts’s excitement over the word “slumgullion.” But perhaps this is evidence that Roberts will fit in well with the Bush Administration’s science-doesn’t-matter attitude.
I doubt that such decades-old musings of Roberts will persuade all Democratic senators to oppose the Roberts nomination. But it should not take a gotcha memo–if one does exist–to persuade Democrats to vote against him. Roberts is clearly a fellow of a strong conservative bent. Democrats can argue that the courts have moved too far to the right and simply declare enough is enough. Instead, there is a sense that the Roberts opposition must uncover a smoking-gun item to push the Democratic senators to stand as a group against Roberts. And let me pass on this bad news for progressives: So far, no troubling rumors have emerged for anti-Roberts investigators to chase.
There will be tough questions hurled at Roberts during his nomination hearings: about his skeptical view of privacy rights, about his previous opposition to Roe, about his apparent fondness for executive power, about the ethical issue raised by a meeting he had with Bush Administration officials about his possible appointment to the Supreme Court when he was about to rule on an important case in which the Administration was a party. None of this, though, carries the potential to derail the nomination. But why should anyone worry when Roberts is such a dedicated grammarian?