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Jewish World Review July 25, 2005 / 18 Tammuz, 5765 With Roberts, conservative doubters have nothing to worry about By Jonathan Turley
http://www.JewishWorldReview.com |
In 1948, a young Abner Mikva (future Illinois congressman and federal judge) reportedly walked into an Illinois Democratic committeeman's office to volunteer as an enthusiastic young Democrat. The cigar-chomping committeeman looked suspiciously at Mikva and asked, "Who sent you?" Mikva answered "Nobody." The committeeman then barked, "We don't want nobody nobody sent."
It is a Chicago lesson that comes to mind with last week's Supreme Court nomination. For conservative groups, nominee John Roberts was not sent by nobody but by President Bush— and that appears to be enough. While his views are not well-known publicly, Roberts is well-known in the Beltway and in the White House.
With little public record, the White House was able to focus on personality rather than ideology. Indeed, the comments of the White House and others made it sound like we're adopting a golden retriever: He is "kind," "loyal," "family-oriented," "faithful" and "friendly." The only thing missing is an American Kennel Club certificate that he was free of hip dysplasia.
The suggestion that Roberts is not as hard-right as other people on the shortlist confuses style with substance. As someone who believes that Bush is entitled to such a nominee, I am less bothered by the fact that he is extremely conservative as I am the odd suggestion that he might be a swing vote on the Supreme Court. If Roberts is a swing vote on the court, it would be between the far right and the farther right.
What we know and what we suspect about Roberts suggests that he could well change the face of the law in a dozen different areas. After decades of a divided Supreme Court, a breathtaking array of legal doctrines currently hangs by a single vote—that vote may become Roberts'. Consider just a few such areas:
Abortion: With the retirement of Justice Sandra Day O'Connor, a Roberts appointment could place Roe vs. Wade a single vote away from being overturned—and would trim away at other related rights. Roberts has argued as a government attorney for overturning Roe vs. Wade. While he stated in his last confirmation hearing that Roe is the law of the land, he was simply stating a fact. Now he will be able to change doctrine. Personally, Roberts is a deeply religious man who is married to an ardent pro-life advocate. In the next term, the court will be hearing a parental-notice case and one on partial-birth abortion. Roberts appears likely to vote with the hard-right on both cases and narrow the protected area under Roe.
Affirmative action: O'Connor was the critical vote in the 2003 Grutter decision, in which the court upheld an affirmative action program for law school admissions. Roberts could flip the majority on that issue and rule against affirmative action.
Campaign financing and reform: Without O'Connor, there is no longer a majority to defend the court's earlier 5-4 ruling upholding federal restrictions on campaign financing. Roberts has a very conservative view on the scope of federal laws. He is more likely to vote against such restrictions.
Church and state: Just last month, O'Connor voted against the display of the 10 Commandments in two state capitols (one was upheld on a 5-4 basis). Roberts is more likely to vote with the four justices in favor of allowing greater entanglement of church and state in such displays.
Criminal procedure: A host of criminal procedure rulings hangs by one vote, from the scope of searches to abusive interrogation techniques. Roberts is known as a faithful conservative on such issues.
Discrimination: Roberts has taken a narrow view of federal regulations and is likely to diverge from O'Connor in discrimination cases.
National security: O'Connor was critical in rejecting Bush's extreme view of presidential power in the "enemy combatant" cases. Roberts has published an opinion siding with the president on the interpretation of the Geneva Convention.
States' rights and federalism: O'Connor was at one time a loyal combatant in the "Federalism Revolution" that struck down federal statutes in favor of states. While she softened a bit with time (as did Chief Justice William Rehnquist), Roberts would introduce a new, strong federalism voice and possibly revive the dormant revolution.
This is why, with Roberts, Bush may become the most influential president in history in reshaping both American law and society. Putting aside Roberts' pleasant demeanor and understated personality, there will be nothing subtle or low key to the changes that he is likely to bring to the United States Supreme Court.
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JWR contributor Jonathan Turley is a law professor at George Washington University. Click here to visit his website. Comment by clicking here. © 2005, Jonathan Turley |
Arnold Ahlert | |||||||||||
