Wednesday, July 20, 2005

Does Roberts represent mainstream law, values?


Does Roberts represent mainstream law, values?

When President Bush was running for office, he said repeatedly he wanted to fill any Supreme Court vacancies with nominees in the mold of Antonin Scalia and Clarence Thomas — the justices most willing to overturn the court's established precedents.

Last Saturday, he said his choice would be a "fair-minded individual who represents the mainstream of American law and American values," a broader, if not entirely different, standard.

To cast instant judgment on which mold John Roberts fits more snugly would be wrong, if not impossible. Bush, in announcing his choice Tuesday, focused on Roberts' all-American credentials: athlete, scholar, respected Washington lawyer and family man. But Roberts' legal record, while certainly conservative, is largely opaque.

Roberts' limited experience as a federal appeals judge — scarcely two years and about 40 largely non-controversial opinions — gives few clues as to his legal philosophy. His work as a lawyer for previous Republican administrations and for private clients, though, offers some hints. He made arguments on abortion rights, free speech and church-state issues that are at odds with established law.

In one brief, for example, he suggested that Roe v. Wade, the landmark 1973 decision that legalized abortion, had no basis in the Constitution and should be overturned. The question now is whether as a Supreme Court justice he would act to do so.

The Scalia-Thomas mantra was convenient political code for voters who oppose abortion, gay rights or affirmative action; reject government regulation of business, safety or the environment; or want official support for their brand of religion.

Whether such views are within the mainstream of American law and values is very much in doubt. In a USA TODAY/CNN/Gallup Poll 10 days ago, for instance, 29% of the public said Roe v. Wade should be overturned; 68% said it should be sustained.

The confirmation process, established by the Founders to make the Senate a co-equal with the president in appointing the judiciary, provides the opportunity to examine Roberts' constitutional philosophy. He should be asked in detail his views of how the Constitution should be interpreted. Is it rigid and unchanging, to be viewed only in its most literal, 18th century terms? Or should the apparent intent of the Founders be applied in the light of modern realities?

Should the modern interpretation of the right to regulate interstate commerce be sustained? Or would he, as some of his backers wish, revert to when there were few restraints on business, few rights for workers and little protection for consumers or the environment? And would he carve out exceptions to established law regarding freedom of speech or separation of church and state?

Mainstream law is the settled judgments of the Supreme Court. Roberts should be judged on whether or not he accepts the doctrines behind those judgments. To reject them would less conservative than radical.

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