[Peace-discuss] Judge Roberts beyond Roe vs. Wade

[Marianne Brun]

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Von: moderator at portside.org
Antworten an: portside at portside.org
Datum: Wed, 20 Jul 2005 20:34:38 -0400 (EDT)
An: portside at lists.portside.org
Betreff: The Stakes in Roberts's Nomination

The Stakes in Roberts's Nomination

by BRUCE SHAPIRO

The Nation

[posted online on July 20, 2005]

This article can be found on the web at
http://www.thenation.com/doc.mhtml?i=20050801&s=shapiro2

Judge John Roberts is a white male who has spent his
entire adult life in Washington. Those facts themselves
mean nothing, but they do beg a question: What could be
so compelling about Judge Roberts as a Supreme Court
candidate that the White House was willing to forswear
all claims on ethnic diversity and all geographical
political advantage, not to mention the express desire
of Laura Bush and countless other women to see a
nominee of their gender?

To understand Judge Roberts's unique appeal, forget for
a moment "conservative," "textualist," "original
intent" and the other shorthand with which get-ahead
Republican law school grads watermark their resumes.
Look instead at a single case decided by Judge Roberts
and two other members of the DC Court of Appeals less
than a week ago. As it happened, the day before that
ruling was released, President Bush interviewed Judge
Roberts at the White House. Judge Roberts, it is widely
reported, aced his interview; but his appeals court
decision due for publication just twenty-four hours
later--about the rights of prisoners at Guantanamo
Bay--was, in effect, the essay question.

Here is the question: Do the obligations of the Geneva
Conventions apply to prisoners seized in Afghanistan?
And can the President convene military trials,
unreviewable by any courts and Congress? The case
involves Salim Ahmed Hamdan, allegedly a driver for
Osama bin Laden, captured on the post-9/11 battlefield
and held in Camp Delta. Last year a federal judge shut
down Hamdan's trial and up to a dozen other military
tribunals. As convened by the Pentagon, those drumhead
tribunals, wrote the lower court, amounted to a
violation of the Geneva Treaty and an unconstitutional
seizure of power by the President.

Whatever Judge Roberts's performance in his interview
with the President, whatever his sterling report card
as litigator and jurist, we can be sure there was only
one acceptable answer to the Guantanamo essay question,
and the judge gave it. He voted, along with his two
appeals court colleagues, all three of them Reagan or
Bush appointees, against Geneva Convention protections
for Guantanamo captives, in scathing language ordering
the military tribunals forward, empowering the
President, and the President alone, to determine those
prisoners' fate.

More than anything else, to fill Sandra Day O'Connor's
seat on the Supreme Court, the Bush White House sought
an advocate for ever-expanding executive branch powers.
With a raft of antiterrorism and Patriot Act cases in
the judicial pipeline, seeking relief from federal laws
and international standards on interrogation, torture
and the treatment of prisoners, the Bush Administration
badly needs a friend like Roberts on the Supreme
Court--a friend who shares its view that the
President's authority in the "war on terror" is above
judicial review, and counts more than acts of Congress
or international treaties. In other words, if you like
the Patriot Act and Guantanamo, you'll love John
Roberts.

Roberts started his career as a protege of Justice
Rehnquist. The Chief Justice's distinctly activist
vision--of conservative means of expanding the
authority of presidents while stripping back federal
regulations on business and civil rights--shaped
Roberts's views. Then Roberts spent years embedded in
the executive branch, arguing cases in the Supreme
Court on behalf of the Reagan and first Bush
Administrations' efforts to promote school prayer,
restrict abortion and punish flag desecrators.

Perhaps most telling is Roberts's brief track record on
the federal bench on individual rights, a threshold
issue not just for the left but conservative
libertarians. A few years back, Washington, DC, police
arrested a child for eating a single french fry on the
Metro, during a zero-tolerance crackdown on subway-rule
violators: arrrested her, handcuffed her, fingerprinted
her, threw her in the back of a squad car and held that
12-year-old in lockup for three hours. The child's
mother sensibly pointed out in a lawsuit that an adult
committing the same offense would have been issued a
ticket, not treated like a dangerous felon. Judge
Roberts rejected the mother's plea for sanity:
Arresting a 12-year-old like a suspect on Cops for
eating on the subway, Roberts wrote, advanced "the
legitimate goal of promoting parental awareness and
involvement with children who commit delinquent acts."
Even in red states, parents may not spare much
enthusiasm for a judge who would lock up their
12-year-old for public consumption of McDonald's fries.

The french-fry case suggests that behind Judge
Roberts's famous amiablity--which has won him
influential friends in both parties--lies a far more
doctrinaire personality. Whiffs of that ideological
rigidity leak out of his careful opinions and briefs.
Hostility to environmental regulation? Yes, at least in
his ruling in a California land-development case in
which he sought to weaken the Endangered Species Act.
Hostility to reproductive rights? As a deputy to
solicitor general Ken Starr in the Reagan years, he
curried favor with the antiabortion right by adding an
irrelevant footnote to his briefs in a
family-planning-funding case, arguing that Roe v. Wade
was "wrongly decided and should be overturned." In his
appeals-court confirmation hearings, Roberts said this
footnote simply reflected Administration policy, adding
that he regards Roe as settled law; but his willingness
to go beyond the call of duty and politicize his briefs
suggests, at a minimum, enthusiasm for revisiting the
issue.

President Bush may not have had a "litmus test" on Roe
v. Wade, but there was one very clear litmus test:
membership in the insular GOP judicial patronage
network. Of the names floated as Supreme Court
finalists in the past week, most were members of the
Federalist Society, a GOP employment agency
masquerading as conservative counterweight to the ABA.
Judge Roberts--whose Supreme Court aspirations have
long been widely known in Washington--is a prince of
the right-wing legal family.

The President has also, after a long search, managed to
find a Supreme Court candidate who in many ways looks
remarkably like himself: born in the Northeast (in
Roberts's case, Buffalo), heir to old-line power (his
father was a US Steel executive), moved to a red state
(Indiana), Ivy League-educated (Harvard, Harvard Law).
>From the day of his graduation from law school, Judge
Roberts has held no job except those secured through
conservative Republican patronage. With the selection
of Judge Roberts, President Bush hopes that the
Rehnquist Revolution will continue long after the
ailing Chief Justice retires. The stakes in Roberts's
nomination could not be higher.
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