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.