As the opening gavel sounds in Judge John Roberts’s confirmation hearing, what have we learned about George W. Bush’s first pick for the Supreme Court? History counsels caution in predicting the performance of Supreme Court nominees. This magazine opposed David Souter based on his scant but alarming record as New Hampshire Attorney General, but he is today one of the Court’s most reliable civil libertarians. JFK’s nominee Byron White turned out to be a premature social conservative.
Yet most Justices remain consistent with the broad outlines of their public biography, and Roberts, unlike Souter, is no stealth nominee. Reams of documents testify to his long-held views and activities. So what do we know about Roberts and about what his confirmation might mean for this magazine’s enduring concerns with civil rights, civil liberties and social justice?
For one thing, based on his Senate questionnaire, we now know that the judge is at the center of an ethics scandal. Attorney General Gonzales, Karl Rove, Dick Cheney and other top officials interviewed him for the nomination in May, the very period he was hearing the Administration’s appeal in the crucial Ahmed Hamdan case, a sweeping challenge to the extraordinary military commissions at Guantánamo. Indeed, Roberts was first interviewed by Gonzales on April 1, before Hamdan’s appeal was heard. These secret meetings should sound an alarm across the partisan divide. Roberts and two other judges ruled in favor of the commissions just four days before the White House announced Roberts’s Supreme Court nomination. Hamdan’s lawyers knew nothing about Roberts’s secret job interviews. As legal ethicists Stephen Gillers, David Luban and Steven Lubet pointed out in Slate, these interviews “violated federal law on the disqualification of judges,” specifically the statutory principle that judges should step aside if their “impartiality might reasonably be questioned.” The huge stakes for Roberts, and the equally massive stakes for the Administration in its challenge to the Geneva Conventions and other impediments to the military commissions, raise Roberts’s role in the Hamdan case beyond mere appearance of conflict to the real thing. Does anyone really think that on July 19 Bush would have introduced Roberts as his nominee if four days earlier he had voted the other way? Roberts should have recused himself from the case. He could at least have notified Hamdan’s lawyers of his conflict of interest. The fact that Judge Roberts–a wired-for-life GOP activist who advised the party in Bush v. Gore–didn’t do either means that his impartiality fails the smell test.
Even without the Hamdan mess, Roberts has danced uncomfortably with the proper role of judges. In July he was asked by Senator Dick Durbin how he’d handle cases that conflict with his private religious views–potentially a matter of great import in cases ranging from abortion to stem-cell research. Roberts said he would recuse himself, an answer that should shock any Republican or Democrat who believes Justices take an oath to defend the Constitution, not cherry-pick cases based on their religious comfort zone.
What else have we learned? We now know that as a rising young star in the Reagan White House Roberts promoted the still-contentious doctrine that Congress could strip federal courts of their enforcement power in civil rights and abortion cases, a principle getting new life today as a tool against gay unions; that he helped launch the Republican crusade to remake federalism to undermine the rights of criminal defendants and the enforcement of environmental laws; and particularly that Roberts grotesquely caricatured women seeking pay equity in the workplace and greater representation at the bar.
What we don’t know–and what senators urgently need to find out before the nomination comes to a vote–is how his legal commitments at twentysomething played out a decade later when he served as Ken Starr’s principal deputy in the Solicitor General’s office during the George H.W. Bush Administration. As the Alliance for Justice has noted, the Justice Department itself describes Roberts as the primary decision-maker in hundreds of cases, and he was detailed specifically to handle the most politically sensitive matters. The Democrats’ demand for release of Roberts’s Solicitor General papers has ample precedent in the confirmation of William Rehnquist as Chief Justice, when Congress sought and received similar documents. The Roberts confirmation should not advance an inch until his role in the formulation of Bush I policies on abortion rights, voting-rights enforcement and the overall strategy to advance radical federalism is made clear.
Roberts, for all his geniality, shows no sign of being a closet pragmatist looking to escape his most extreme utterances. With remarkable consistency he has established a twenty-five-year track record as foot soldier in a legal revolution profoundly destructive to the public interest. Indeed, his views are among the most extreme to emanate from a cohort of partisan Republican activists intent on reversing decades of settled policy on civil rights, voting rights, women’s rights, privacy rights and access to justice. It would be a mistake for civil libertarians to give Roberts a pass based on Roe, affirmative action or any other issue on which he claims fealty to precedent. What is disturbing about John Roberts is the complete picture. The coming weeks may reveal new information about this nominee, but headed into the confirmation hearings, Roberts has done nothing to dispel the impression that he is a dangerous and partisan Republican ideologue who has no place on the Court.