Friday, September 16, 2005

How Conservative Is Judge Roberts?

The New York Times

How Conservative Is Judge Roberts?

It's not surprising that the Senate hearings for Judge John Roberts Jr. are turning out to be about how conservative he would be as the next chief justice of the United States. But there is a twist. It is the Democrats on the Judiciary Committee who want to make sure that he would be conservative in the true sense: respectful of tradition, and not seeking to impose radical new rules. The key question is whether he would stand by established legal precedents on issues like abortion, civil rights, the environment and the power of Congress, or would seek to push the law in a drastically different direction.

Judge Roberts's record, on the bench and off, puts him well to the right end of the ideological spectrum. As a Reagan administration lawyer, he argued for a very narrow interpretation of the Voting Rights Act. As an appeals court judge, he wrote an opinion in an Endangered Species Act case that suggests he may have a very cramped view of Congress's power. The documents about his past legal work that have become public contain some troubling passages, notably his assertion that abortion rights are based on a "so-called 'right to privacy.' "

Responding to questions, he has talked at length about his commitment to civil rights, privacy and Congressional authority. He told Russell Feingold, the Wisconsin Democrat, that "the gains under the Voting Rights Act have been very beneficial in promoting the right to vote, which is preservative of all other rights." He emphasized that the Reagan administration had favored extending the act, whatever its differences with voting rights groups over the details. He told Joseph Biden Jr., the Delaware Democrat, that he believes the Constitution prohibits discrimination against women, and he endorsed the test the court now uses in such cases.

He told Senator Arlen Specter, the Pennsylvania Republican, that Roe v. Wade is "settled as a precedent of the court" and "entitled to respect" under the legal principle that a court's past rulings should be given deference. He also said he recognizes the existence of a constitutional right to privacy and agrees with the principle of the 1965 case striking down the laws against selling birth control devices, that "marital privacy extends to contraception and availability of that."

These are good things to hear, but there's reason for concern. He did not say he agrees with Roe, for instance, only that it is entitled to deference. That is a truism: all of the court's decisions are entitled to such deference, but some are reversed anyway. Judge Roberts waved away questions about troubling statements in his older legal memos, saying he was just a staff lawyer in his 20's when he wrote them. But he and the White House have refused to release more recent memos, from his time in the solicitor general's office, which might give a better picture of his views as a mature lawyer.

Senate Democrats have two goals. Before Mr. Roberts, now 50, becomes chief justice for life, they want to try to determine that he does not hold far-right views on important issues. It is a determination that many senators seem not to have made yet. Senator Biden, for one, complained about the "Kabuki dance" of the hearings and worried out loud, saying, "We are rolling the dice with you, judge."

No less important, Senate Democrats are putting down markers for the next judicial battle. President Bush will soon nominate a replacement for Justice Sandra Day O'Connor, who has been an important swing vote on the court. Democrats have been calling for Justice O'Connor to be replaced with another centrist Republican. By subjecting Judge Roberts to tough questioning, they are sending a message that if President Bush chooses a far-right nominee, he can expect a major fight.