Wednesday, July 20, 2005

Fred Barnes on Roberts

Fred Barnes, a bright and measured, solid conservative commentator, said this (via RealClearPolitics) at the Weekly Standard. Read it carefully.

The Roberts nomination didn't prompt conservatives to jump for joy, though he was widely praised. Cornyn called him a "solid pick." Republican Sen. Tom Coburn of Oklahoma offered no praise at all. He said the Senate must examine Roberts' "loyalty to the Constitution and its strict construction." Sounding a bit like Democratic Sen. Chuck Schumer of New York, who is sure to spearhead the opposition to Roberts, Coburn said senators have the right to ask "any appropriate question."

Social conservatives were hoping for more. No doubt they'll line up in support of Roberts when Democrats like Schumer and groups such as People for the American Way begin to attack him. But they dream of the day when there are five votes on the court to reverse the 1973 Roe v. Wade decision, which legalized abortion. Now there are only three. Is Roberts likely to join a anti-Roe bloc on the court? Probably not.
(Emphasis added.)


mmuench said...

The latest info on Judge Roberts:

NARAL issued a press release on Tuesday with the "dirt" they have dug up so far on Roberts (excerpts below):


“The early information on Judge Roberts does not look good for a woman’s right to choose. As Deputy Solicitor General under President George H.W. Bush, Roberts wrote a number of amicus briefs in opposition to Roe v. Wade and a woman’s right to choose,” Cooper continued.

Some of the lowlights of Judge Robert’s background include:

As Deputy Solicitor General, Roberts argued in a brief before the U.S. Supreme Court (in a case that did not implicate Roe v. Wade) that “[w]e continue to believe that Roe was wrongly decided and should be overruled…. [T]he Court’s conclusion in Roe that there is a fundamental right to an abortion… finds no support in the text, structure, or history of the Constitution.”
In Rust v. Sullivan, the Supreme Court considered whether Department of Health and Human Services regulations limiting the ability of Title X recipients to engage in abortion-related activities violated various constitutional provisions. Roberts, appearing on behalf of HHS as Deputy Solicitor General, argued that this domestic gag rule did not violate constitutional protections.
Roberts, again as Deputy Solicitor General, filed a “friend of the court” brief for the United States supporting Operation Rescue and six other individuals who routinely blocked access to reproductive health care clinics, arguing that the protesters’ behavior did not amount to discrimination against women even though only women could exercise the right to seek an abortion.

The Court was so accustomed to the Solicitor General and the Deputy Solicitor General arguing for the overturn of Roe that during John Roberts’s oral argument before the Supreme Court in Bray, a Justice Asked, “Mr. Roberts, in this case are you asking that Roe v. Wade be overruled?” He responded, “No, your honor, the issue doesn’t even come up.” To this the justice said, “Well, that hasn’t prevented the Solicitor General from taking that position in prior cases.”


Roberts' arguing for the denial of Title X recipients to "engage in abortion-related activities" and also Roberts' brief supporting Operation Rescue and other pro-life protestors are both new to me and are certainly welcome news.

Granted, Roberts was acting on behalf of the United States in both these cases -- but still, both are reasons to be a little encouraged (knock on wood...)

mmuench said...

Just received this Fax Note from the Republican National Coalition for Life on the Roberts nomination:

Cautious Optimism Urged on Roberts Nomination – Rushing to judgment on John Roberts’ nomination for Associate Justice of the Supreme Court of the United States is very likely not in the best interest of the pro-life and pro-family movement.

In the end, enthusiastic support for his confirmation, based on the perception that he would rule differently than Justice Sandra Day O’Connor, could come back to haunt those who engage in it. After all, his record indicates that his opinions might very well reflect hers, especially when it comes to Roe v. Wade.

In 1989, Judge Roberts became a principal deputy to solicitor general Kenneth Starr. In that capacity, he helped write a brief in the case of Rust v. Sullivan, which was a challenge to the restrictions on Title X funds for agencies engaged in family planning, prohibiting them from recommending or referring clients for abortions.

Acting on behalf of the Bush administration, the lawyers involved, including then-deputy solicitor general Roberts, wrote, “We continue to believe that Roe v. Wade was wrongly decided and should be overruled.”

The Supreme Court’s decision in that case upheld the right of Congress to prohibit federally funded family planning agencies like Planned Parenthood from promoting or performing abortions.

Pro-life Americans were heartened to learn of Judge Roberts’ role in that case.

Then, in 2003, during his confirmation hearings for the U.S. Court of Appeals for the District of Columbia Circuit, he was pressed for his views on Roe. At that time he said, “Roe v. Wade is the settled law of the land. . . . There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”

Media reports show that he clearly stated during those confirmation hearings that the briefs he wrote or helped to write, while he was working for the solicitor general, reflected the administration he served, rather than his own judicial philosophy.

Many leaders in the social conservative community have rallied to the support of Roberts’ confirmation, even though Roberts’ stated view is that Roe is the settled “law of the land.”

Some knowledgeable observers have made comments that should be noted.

Supreme Court historian David Garrow of Emory University said that, while Judge Roberts is a conservative, he is not in the mold of Justices Antonin Scalia and Clarence Thomas. “I do not think it moves the court” that much, he said. (The Dallas Morning News, 7/20/05)

John Yoo, a professor of law at the University of California at Berkeley who served in the Justice Department earlier in the Bush administration said, “He’s the type of person that business conservatives and judicial restraint conservatives will like, but the social conservatives may not like.” “He represents the Washington establishment. These Washington establishment people are not revolutionaries, and they’re not out to shake up constitutional law. They might make course corrections, but they’re not trying to sail the boat to a different port.” (The New York Times, 7/20/05)

Judge Roberts was confirmed by a near-unanimous vote (three NAYs: Schumer, Kennedy and Durbin) for the Court of Appeals just two years ago. It seems highly unlikely that many votes, if any, will change this time. He is well accepted by the Washington establishment.

The pro-abortion crowd, most Democrats, and other liberals will flap around for a while in an effort to cause a stir and satisfy their donors. But, in the end, John Roberts will very likely be seated on the U.S. Supreme Court in the fall.

Then, and only then, will we know which way he will go on issues that matter to us.

Article X of the U.S. Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Will he join with Scalia and Thomas in respecting the original intent of the Framers, or will he be a party to the consistent drive by the majority on the court to undermine the will of the people by striking down the laws passed by their duly-elected representatives in the legislatures of the 50 sovereign states?

Judge Roberts is an extremely attractive nominee with an impressive record. He will very likely turn out to be a credit to President Bush and a staunch adherent to Constitutional principles.

He may provide to the court the conviction that the right to life is the first right without which we have no other. We don’t know. We are not sure.

Perhaps we would do well to exercise caution while remaining optimistic. After all, Roberts could turn out to be another O’Connor, or Souter, or Kennedy. If that happens, which we sincerely hope it won’t, it would be most uncomfortable to have to point the finger of blame at ourselves.