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Another Activist Judge | The Nation

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John Nichols

John Nichols

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Another Activist Judge

In 1999, when he was trying to appeal to the conservative base that would eventually deliver the Republican presidential nomination to him, Candidate George W. Bush said the Supreme Court justices he most admired were Antonin Scalia and Clarence Thomas. The clear intimation was that, given the opportunity, Bush would nominate someone like Scalia and Thomas-- a conservative judicial activist bent on upsetting established law--to the high court.

More recently, as he has finally been faced with the task of naming a nominee to the Court, President George W. Bush has attempted to sound more moderate and thoughtful, suggesting that "a nominee to that Court must be a person of superb credentials and the highest integrity, a person who will faithfully apply the Constitution and keep our founding promise of equal justice under law." President Bush has said that he prefers nominees who display "respect for the rule of law and for the liberties guaranteed to every citizen" and who "will strictly apply the Constitution and laws, not legislate from the bench."

So which George W. Bush named federal appeals judge John G. Roberts Jr. to fill the opening on the Supreme Court created by the decision of Justice Sandra Day O'Connor to retire? Is Roberts the Scalia/Thomas clone that Candidate Bush promised or is he the mainstreamer President Bush suggested he was looking for?

Chalk Roberts up as Candidate Bush's pick.

For more than a decade, Scalia and Thomas have campaigned without success to reverse the Court's 1973 Roe v. Wade decision, which removed barriers to a woman's right to choose. This is the hottest of the hot-button issues facing the Court. And on it, all indications are that Roberts will be the clone Scalia and Thomas need to complete their machinations.

When he served as principal deputy solicitor general of the United States from 1989 to 1993--under Solicitor General Ken Starr--Roberts filed a 1990 brief with the Supreme Court that declared: "Roe was wrongly decided and should be overruled. [T]he Court's conclusion in Roe that there is a fundamental right to an abortion," argued Roberts, "finds no support in the text, structure, or history of the Constitution."

Never mind that Supreme Court justices selected by presidents of both parties had consistently concluded otherwise. Roberts had a different opinion and he did not hestitate to advance it. As the deputy solicitor general, he argued for a "gag rule" that prevented physicians working with family planning programs that were recipients of federal funding from discussing abortion with their patients. He even went so far as to appear before the Court to argue in support of Operation Rescue during the period when the group's members were aggressively, sometimes violently, blocking access to healthcare clinics that provided abortions.

Roberts was so feverish in his attempts to find a way to overturn Roe that Supreme Court justices openly joked about his over-the-top antics. Once, during an oral argument before the Court, one of the justices asked the deputy solicitor general: "Mr. Roberts, in this case are you asking that Roe v. Wade be overruled?"

Roberts replied, "No, your honor, the issue doesn't even come up."

"Well," the justice responded, "that hasn't prevented the solicitor general from taking that position in prior cases."

The NARAL Pro-Choice America brief on Roberts, which reviews his aggressive advocacy for antichoice positions, is blunt: "If Roberts is confirmed to a lifetime appointment, there is little doubt that he will work to overturn Roe v. Wade."

On this point, NARAL Pro-Choice America is in full agreement with Roberts's old pals at Operation Rescue.

The militant antichoice group was among the first to hail Bush's selection of Roberts to fill the seat being vacated by O'Connor, who was generally a supporter of reproductive rights. "We pray that Roberts will be swiftly confirmed," announced Operation Rescue President Troy Newman.

Now, it is said that a President ought to have a great deal of latitude when it comes to making judicial nominations.

But all indications are that Roberts is not the nominee of President Bush, the man who condemns judges who would "legislate from the bench" and undermine "equal justice for all."

Rather, he is the political pick of Candidate Bush, the man who promised right-wing Republicans that he would give them another Scalia or Thomas. Indeed, Candidate Bush has found a nominee extreme enough to satisfy even Operation Rescue.

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