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Sapere aude - dare to be wise
Wednesday, July 20, 2005
John Roberts: Behind the Curtain
Posted 2:29 PM by Joshua Claybourn
Perhaps the best way to examine any potential nominee for the Supreme Court is to first look at any possible negatives. How will people attack John Roberts? In general he has received overwhelming praise from Republicans and measured respect from Democrats. But we would be naive to think such calm nerves will carry the day, and we would do well to look behind the curtain and examine how Roberts will be attacked.

There appears to be two chief areas of opposition - his briefs in the Solicitor General's office and the decisions he penned during his brief stint as an appellate judge. As Deputy Solicitor General Roberts wrote a brief that argued Roe v. Wade was wrongly decided and should be reversed. But the Solicitor General has a client: the President and his administration, and as such he argues as the President directs in the same way that an attorney argues as his client directs. I do not doubt that Roberts disagrees with the holding in Roe v. Wade, but opponents should be cautious in attributing too much of his work as deputy Solicitor General to his own beliefs. The briefs reads:
We continue to believe that Roe was wrongly decided and should be overruled . . . [T]he Court's conclusion[] in Roe that there is a fundamental right to an abortion . . . find[s] no support in the text, structure or history of the Constitution.
That "we" is the president and his administration. As Deputy Solicitor General he also opposed a congressional effort - following the 1980 Supreme Court decision Mobile v. Bolden - to make it easier for minorities to successfully argue that their votes had been diluted under the Voting Rights Act. In private practice, he also wrote a friend-of-the-court brief arguing that Congress had failed to justify a Department of Transportation affirmative action program. (Adarand Constructors, Inc. v. Mineta, 2001). Based on these briefs, some groups will complain that Roberts is "anti-minority" or even racist. But such criticisms say much more about the critic than Roberts, and display an extreme ignorance of even basic legal principles.

This is best demonstrated in Roberts' own words in Hedgepeth v. Washington Metro Authority, a case where a twelve-year-old girl was taken into custody, handcuffed, and driven to the police station because she ate a french fry in a Washington metro station. Roberts wrote the opinion for the D.C. Circuit, affirming a district court decision that dismissed the girl's complaint, which was based on the Fourth and Fifth amendments.

Does that mean Roberts thinks fries should be banned in metro stations, or that the law which dictated she be arrested was a good one? No. He began the opinion by noting that "No one is very happy about the events that led to this litigation." Nevertheless, the law was clear and the court is not authorized to second-guess the wisdom of the District's policies: "The question before us is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution."

One way to tell an informed legal pundit from an ignorant one is that informed observers understand there are numerous ideas and laws that may be stupid, but are not unconstitutional. As Roberts wrote: "Rational basis review does not authorize the judiciary to sit as a superlegislature." Roberts' opinion was joined with unanimous support from the panel, which itself was affirming a district court opinion. Roberts isn't exactly a radical jurist.

If history is any indication, those who oppose Roberts' intellectually sound judicial approach will simply settle for personal attacks that have little to do with judicial philosophy. Some conservatives have started down that road, with Michael Meckler complaining that Roberts has worked in Washington for too long and was too close to his law partners, some of whom were - gasp! - Democrats that "helped defend both President Clinton and the Democratic National Committee."

Judges are not politicians and should be judged on their legal approach alone. But even if we do look beyond the law and into Roberts' personality, we see a real winner. Raised as a Hoosier in Northwest, Ind., Roberts has developed a reputation as calm, sensible, down to earth and respectful. Indeed, that Roberts would have such a close and warm relationship with partners who represented Clinton and the DNC only furthers the notion that Roberts is the right choice.

Update: Ann Coulter isn't happy because "Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever..." Yet Chief Justice Rehnquist had no more experience when he was selected. The comparison between Roberts and Rehnquist is a good one, too. Rehnquist once had Roberts as a law clerk and considers him a protege.

As seen in the
National Jurist
and on
FOXNews

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