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July 20, 2005
President Bush’s selection of Judge John G. Roberts to be his Supreme Court nominee solves a number of political problems for the President quite neatly. First, by making a quick selection, the President can move the news off the increasingly embarrassing Karl Rove scandal. Second, by choosing someone with a very short paper trail of written legal opinions, the President avoids the mess that could result when opponents unearth his nominee’s record. If Roberts wants to dodge questions about his judicial philosophy in his confirmation hearings, there won’t be much for Senate Judiciary Committee staff or the press to dig up. Finally, Roberts satisfies Bush’s far-right base, with his staunch conservatism and particularly his statement that Roe v. Wade was a wrong decision and ought to be overturned. At the same time, Roberts demonstrates a level of professional accomplishment and respect from his peers that makes him far less liable to stir up controversy at his confirmation than a more ideologically flamboyant candidate.
It is critical that Senate Democrats step up to their role in the confirmation process and put tough questions to Roberts. Does he still believe that Roe should be overturned, or does he think, as he said in 2003 during his federal appeals court confirmation, that Roe is now “the settled law of the land,” and that he will have no trouble upholding it? Abortion rights are not just a “litmus test” issue imposed by a narrow interest group, as rightwingers insist. The largest majority of Americans in history supports upholding Roe v. Wade, and the right to privacy embodied by that decision. To select a Supreme Court judge who will overturn that case is to go against the mainstream culture of our country and the legal and cultural norms of the last thirty years.
Roberts’s record also raises serious questions about whether he would protect the interests of individual American citizens from overwhelming corporate and government power. His opinion in Hedgepeth v. Washington Metropolitan Area Transit Authority, upholding the decision that the arrest, search, handcuffing and detention of a twelve-year-old girl for eating a single French fry in a Washington Metro station did not violate her Fourth or Fifth Amendment rights is troubling. So is his opinion in Acree v. Iraq, that Iraqi citizens who had been tortured and falsely imprisoned could not pursue a claim against the Bush Administration-supported Iraqi government. His dissenting opinion in Rancho Viejo v. Norton appears to show contempt for the environmental and species-protection function of the Fish and Wildlife Service.
These and other issues deserve a thorough probing by members of the Senate Judiciary Committee. Let the tough questions begin.