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.