Monday, September 12, 2005

Chief Justice John Roberts?

The U.S. Senate opened confirmation hearings today on the appointment of Judge John Roberts not as Associate Justice of the Supreme Court to replace Sandra Day O'Connor as originally announced, but as Chief Justice to replace the late-William Rehnquist, the man for whom Roberts once worked as a law clerk. A former Hoosier, Judge Roberts was introduced to the Senate Judiciary Committee by Indiana's senior senator, Republican Richard Lugar. And sitting directly behind Roberts in the public gallery was Indianapolis attorney Peter Rusthoven, a former colleague of Roberts in the White House counsel's office under President Reagan and unsuccessful conservative Republican candidate for the U.S. Senate.

President Bush's decision to elevate Roberts to the Chief Justice position upon Rehnquist's death and name another person to O'Connor's seat was a politically calculated decision. Thanks to the release of Roberts' papers from the Reagan Library and not the White House, which continues to refuse to release relevant documents on a dubious claim of attorney-client privilege, Roberts has emerged as an ideologically driven conservative based on his writings, much like his former boss, Rehnquist, and the Court's two most conservative justices, Antonin Scalia and Clarence Thomas.

By elevating the conservative Roberts to replace the conservative Rehnquist, the ideological balance of the Court will not shift so the argument goes. Any shift in the Court's balance will be determined by Bush's next replacement for Justice O'Connor. One can rationalize giving Roberts, an imminently qualified candidate for the Supreme Court, a pass on his nomination and, instead, focus efforts to force Bush to choose a more moderate candidate to replace O'Connor. As a short-term strategy, it seems to make a lot of sense. But as a long-term strategy, it could prove disastrous.

Unlike Rehnquist, Roberts is a relatively young man at the age of 50 who could foreseeably serve as Chief Justice for thirty years or more. In that position, he sets the Court's agenda and, most importantly, decides who writes the majority opinions for the Court. From the Reagan Library papers, we have learned that Roberts dismissively called a fundamental right, the "so-called right to privacy". We learned that Roberts scoffed at efforts to provide equal treatment under the law to women and minorities. We learned that Roberts' conservative, Christian beliefs have influenced his view of the separation of church and state. As an example of the disdain he holds for his view of the Supreme Court's "activism" in the area of the Establishment Clause and the right to privacy, he supported congressional efforts to strip the Supreme Court of jurisdiction to hear cases involving fundamental rights, including prayer in school and abortion.

As a young, ideologically driven Chief Justice, he can lead the Court in overturning earlier Supreme Court precedents and scale back fundamental rights previously recognized by the Court. Instead of viewing Roberts by looking backwards at the out of touch man he is replacing, we should be looking to the future at the person he will become as our nation's most important judicial decision-maker on important matters like "what equality under the law" means to all Americans, not just some. Should the idea of Judge John Roberts as Chief Justice offer hope to those for whom "equality under the law" is still a dream? What do we know about Roberts aside from the Reagan papers?

We know that Roberts enjoyed a very comfortable childhood as the son of a steel executive. He attended a mostly-white and all male, prestigious Catholic school. He earned his undergraduate and law degrees from Harvard in the company of predominantly privileged, overwhelmingly white students. He didn't serve in the military, which is racially and ethnically diverse. He clerked for one of the Supreme Court's most conservative jurists, who had a distinct antipathy towards the rights of minorities, women and gays throughout his academic and public career.

He worked in the Reagan administration in the White House counsel's office and the Solicitor General's office with mostly white, conservative attorneys like himself. He helped prepare Sandra Day O'Connor for her confirmation hearings, but when some of his colleagues would later suggest O'Connor as the replacement for the retiring Chief Justice Burger, making her the first female Chief Justice, he quickly put down the suggestion, instead favoring his mentor, Rehnquist. Little wonder Justice O'Connor openly expressed her disappointment when learning that Bush had initially chosen him to replace her. Perhaps she knows Roberts too well.

He worked as a partner at one of the nation's largest and most prestigious law firms in Washington, D.C., Hogan & Hartson, where he primarily represented large corporate interests in appellate cases before our federal courts, including the Supreme Court. He assisted candidate Bush's legal team in the Bush-Gore election dispute. And he just took a seat on the D.C. Circuit Court of Appeals last year, where he has written very few opinions, leaving little for us to interpret.

Is there any reason to believe that the unsympathetic view towards women and minorities and his narrow view of the separation of church and state he held as an associate counsel and assistant solicitor general are any different today? If Rehnquist is any guide, the answer is an emphatic no. Are those the views you want reflected in our nation's highest judge for the next three decades? For those thinking about giving Roberts a pass on his nomination, Advance Indiana says: Think Again!

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