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07/20/2005: "Supreme Rhetoric"
I've been having a protracted email discussion about this, so I thought I'd comment here.
I have been forwarded from several people the following letter of protest from MoveOn:
In the past weeks, Republicans and Democrats have called on President Bush to nominate a moderate for the Supreme Court -- someone who would honor the legacy of independent Justice Sandra Day O'Connor. But last night, President Bush nominated Judge John Roberts, a far-right lawyer and corporate lobbyist, to fill her post on the Supreme Court.
We've got to stop Roberts. He opposed clean air rules and worked to help coal companies strip-mine mountaintops. He worked with Ken Starr (yes, that Ken Starr), and tried to keep Congress from defending the Voting Rights Act. He wrote that Roe v. Wade should be "overruled," and as a lawyer argued (and won) the case that stopped some doctors from even discussing abortion.
Now, I like MoveOn. It's a good group. But, the line between fact and inflamatory rhetoric may have been crossed here. I have several points.
First, it is true that can be accredited (in some way) to stating that Roe should be "overturned," but in a very loose sense. The line in question was part of a brief written for Rust v. Sullivan, a case about the constitutionality of Health and Human Services provisions that (amongst other things) diverted federal funds from abortion counseling programs. The time this case was before the Supreme Court, Roberts was serving as Deputy Solicitor General (for then Soliticitor General Ken Starr), and argued the case on behalf of the Federal Government. So, in this sense it may be that we can ascribe this quote to arguing the case on behalf of his client, in this case, viz., the Department of Health and Human Services under Bush (41). The brief in question also had seven listed authors besides Roberts, so it is difficult to attribute this quote to him directly.
Rust v. Sullivan is the "the case that stopped some doctors from even discussing abortion." The email also says that he *won* it, which means that the court found no violation of first, fourth and fifth amendment rights by the Department of Health and Human Services. But all this does not change the fact that being a lawyer, like any profession, is a job. Most lawyers (not just late night TV ambulance chasers) have bosses and it comes with the job in the legal profession to argue for your client, but whether one happens to believe the arguments in question are another matter.
Take another example. MoveOn tells us that "he opposed clean air rules and worked to help coal companies strip-mine mountaintops." While in private practice at the firm Hogan & Hartson, Roberts argued in the case Bragg v. West Virginia Coal Association on behalf of the National Mining Association in support of the legality of mountaintop removal. I'm not saying he's a great guy for doing so. But I'm not going to be so quick to comdemn him for arguing these cases when he was in private practice, as it is very likely that he was vigorously defending his client. An evaluation of a judge can only be made on the basis of his decisions, not the cases he happened to have been assigned at a given law firm.
Now, he may be a "far-right lawyer." He is a strict constructionist. But, he's no Bork. I'm actually rather encouraged that he went on record during his confirmation to the DC Court of Appeals saying that ""Roe v. Wade is the settled law of the land...There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent."
Characteristic of Supreme Court nominees is the unpredictability of their decisions. Some of the more liberal sitting justices were appointed by Republicans (for instance, O'Connor, a Reagan nominee). I'm more interested in how he will decide as a judge, not what (perhaps) crappy jobs he had on the way up. It's like saying that someone who used to work for Wal-Mart must necessarily agree with their corporate
policy.
Bush won the 2004 election. We're all fucked every which way. But, I don't think that this is the worst of all possible candidates. I'm going to wait to see what the media can dig up on him . . .
