President Bush has chosen appeals court judge John Roberts as his first nominee to the Supreme Court. Roberts is 50 years old and a solidly conservative Republican who has served in the administrations of George HW Bush and Ronald Reagan. For years, he worked as a top corporate attorney before being appointed in 2003 to serve on the US Court of Appeals for the DC Circuit, which is widely considered the nation’s second-highest court. We host a roundtable discussion with Nancy Northup, President of the Center for Reproductive Rights, Gary Marx of the Judicial Confirmation Network, Ralph Neas of People for the American Way, Jamin Raskin, author of "Overruling Democracy" and Art Eisenberg of the New York Civil Liberties Union. [includes rush transcript]
President Bush has chosen appeals court judge John Roberts as his first nominee to the Supreme Court. Roberts is 50 years old and a solidly conservative Republican who has served in the administrations of George HW Bush and Ronald Reagan. For years, he worked as a top corporate attorney before being appointed in 2003 to serve on the US Court of Appeals for the DC Circuit, which is widely considered the nation’s second-highest court.
The Los Angeles Times describes Roberts as "a young, conservative judge with a spotless personal record and a minimal paper trail."
Justices are lifetime appointees and if confirmed to the Supreme Court, Roberts could affect major national issues ranging from abortion to property rights for decades to come. President Bush made the announcement with Roberts at his side Tuesday night in a primetime broadcast from the White House.
- President Bush, speaking at the White House, July 19, 2005.
Bush chose Roberts despite pressure from Republicans and even from his own wife, Laura Bush, that he should name a woman to replace retiring Justice Sandra Day O’Connor. O’Connor was considered a swing vote on the closely divided court. Her retirement earlier this month created the court’s first vacancy in 11 years. After Bush made the announcement, Roberts stepped to the microphone to accept his nomination.
- Judge John Roberts, Supreme Court Justice nominee, July 19, 2005.
Roberts is a long-time Bush supporter who donated $1,000 dollars to Bush’s 2000 presidential campaign. In the Reagan administration, Roberts was special assistant to the attorney general and associate counsel to the president. Between 1989 and 1993, he was principal deputy solicitor general, the government’s second highest lawyer, under Kenneth Starr. He has argued more than three dozen cases before the Supreme Court.
Roberts wrote the government’s brief in a 1991 case in which the Supreme Court held that government could prohibit doctors and clinics who receive federal funds from discussing abortion with their patients. In his brief, Roberts wrote: "We continue to believe that Roe v. Wade was wrongly decided and should be overruled." He also stated that the 1973 Court decision finds "no support in the text, structure, or history of the Constitution."
Roberts also co-authored a brief in the Supreme Court on behalf of the government in support of the anti-choice group Operation Rescue and six individuals who had obstructed access to reproductive health care clinics.
Pressed during his 2003 confirmation hearing for his own views on abortion, Roberts said: "Roe v. Wade is the settled law of the land. ... There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent."
According to the Boston Globe, Roberts’ wife, Jane Sullivan Roberts, is a lawyer involved with the anti-abortion group Feminists for Life.
In other cases, Roberts argued that the Supreme Court should invalidate a federal affirmative action program; that the Constitution permits religious ceremonies at public high school graduations; and that environmental groups lacked the right to sue under the Endangered Species Act.
During his time at the Washington law firm Hogan & Harston, Roberts practiced telecommunications, energy and other business law. The Wall Street Journal reports that business leaders who recently began reviewing records of the White House finalist list placed Roberts at the top of their candidate list.
Roberts may also have played a key role in the disputed 2000 presidential election. While his name did not appear on any of the briefs during the Florida recount, three unidentified sources told the Washington Post Roberts gave Gov. Jeb Bush critical advice on how the Florida legislature could name George W. Bush the winner at time when Republicans feared the courts might force a different choice.
Roberts has only served as an appeals court judge for the past two years. George HW Bush first nominated Roberts to the D.C. Circuit in 1992, but his nomination died when Bill Clinton was elected president. The current president nominated Roberts again in 2001, but he didn’t get a floor vote in the Senate until 2003.
Roberts was part of a three-judge panel that handed Bush an important victory last week when it ruled that the military tribunals of detainees held at Guantanamo Bay, Cuba, could proceed. The decision also found that Bush could deny terrorism captives prisoner-of-war status as outlined by the Geneva Conventions.
Roberts will now undergo a background investigation then his nomination will be considered by the Senate Judiciary Committee. Committee chairman, Senator Arlen Specter of Pennsylvania, has said he wants to schedule hearings by late August or September. The court is due to open its next session in October.
Today we spend the hour looking at the nomination of John Roberts to the Supreme Court:
- Jamin Raskin, American University Law professor and author of "Overruling Democracy: The Supreme Court vs. the American People."
- Gary Marx, executive director of the Judicial Confirmation Network. He also worked as a coalitions organizer for the Bush-Cheney 2004 national campaign and served as Development Director and lobbyist for The Family Foundation of Virginia.
- Art Eisenberg, legal director at the New York Civil Liberties Union. Argued the case Burdek v. Takushi before the Supreme Court.
- Nancy Northup, President of the Center for Reproductive Rights.
- Ralph Neas, president of the People for the American Way foundation. He joins us on the phone from his Washington, D.C. headquarters.
AMY GOODMAN: President Bush made the announcements with Roberts at his side Tuesday night in a primetime broadcast from the White House.
PRESIDENT GEORGE W. BUSH: One of the most consequential decisions a president makes is his appointment of a justice to the Supreme Court. When a president chooses a justice, he’s placing in human hands the authority and majesty of the law.
The decisions of the Supreme Court affect the life of every American. And so a nominee to that court must be a person of superb credentials and the highest integrity, a person who will faithfully apply the Constitution and keep our founding promise of equal justice under law.
I have found such a person in Judge John Roberts. And tonight I’m honored to announce that I am nominating him to serve as Associate Justice of the Supreme Court. John Roberts currently serves on one of the most influential courts in the nation, the United States Court of Appeals for the District of Columbia Circuit.
Before he was a respected judge, he was known as one of the most distinguished and talented attorneys in America. John Roberts has devoted his entire professional life to the cause of justice and is widely admired for his intellect, his sound judgment and personal decency.
Judge Roberts was born in Buffalo and grew up in Indiana. In high school he captained his football team, and he worked summers in a steel mill to help pay his way through college. He’s an honors graduate of both Harvard College and Harvard Law School.
In his career he has served as a law clerk to Justice William Rehnquist, as an associate counsel to President Ronald Reagan and as the Principal Deputy Solicitor General in the Department of Justice. In public service and in private practice he has argued 39 cases before the Supreme Court and earned a reputation as one of the best legal minds of his generation.
AMY GOODMAN: President Bush, speaking Tuesday evening from the White House. Bush chose Roberts despite pressure from Republicans and his own wife, Laura Bush, that he should name a woman to replace retiring Justice Sandra Day O’Connor, O’Connor considered a swing vote on the closely divided court. Her retirement earlier this month created the court’s first vacancy in 11 years. After Bush made the announcement, Judge Roberts stepped to the microphone to accept his nomination.
JUDGE JOHN ROBERTS: It is both an honor and very humbling to be nominated to serve on the Supreme Court.
Before I became a judge my law practice consisted largely of arguing cases before the court. That experience left me with a profound appreciation for the role of the court in our constitutional democracy, and a deep regard for the court as an institution. I always got a lump in my throat whenever I walked up those marble steps to argue a case before the court. And I don’t think it was just from the nerves.
I am very grateful for the confidence the President has shown in nominating me. And I look forward to the next step in the process before the United States Senate.
It’s also appropriate for me to acknowledge that I would not be standing here today if it were not for the sacrifice and help of my parents, Jack and Rosemary Roberts, my three sisters, Cathy, Peggy and Barbara, and, of course, my wife, Jane. And I also want to acknowledge my children, my daughter, Josie, my son, Jack, who remind me every day why it’s so important for us to work to preserve the institutions of our democracy.
AMY GOODMAN: John Roberts, President Bush’s first Supreme Court nominee, addressing the nation last night. Roberts is a longtime Bush supporter who donated $1,000 to Bush’s 2000 presidential campaign. In the Reagan administration, Roberts was special assistant to the Attorney General and associate counsel to the President. Between 1989 and 1993, he was Principal Deputy Solicitor General, the government’s second highest lawyer. He’s argued more than three dozen cases before the Supreme Court.
Roberts wrote the government’s brief in 1991 — a 1991 case in which the Supreme Court held that the government could prohibit doctors and clinics that received federal funds from discussing abortion with their patients. In his brief, Roberts wrote, quote, "We continue to believe that Roe v. Wade was wrongly decided and should be overruled." He also stated that the 1973 Court decision finds, quote, "no support in the text, structure or history of the Constitution."
Roberts also co-authorized a brief in the Supreme Court on behalf of the government in support of the anti-choice group, Operation Rescue, and six individuals who had obstructed access to reproductive health care clinics. Pressed during his 2003 confirmation hearing for his own views on abortion, Roberts said, quote, "Roe v. Wade is the settled law of the land; there’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent," he said. According to the Boston Globe, Roberts’s wife, Jane Sullivan Roberts, is a lawyer involved with the anti-choice group Feminists for Life.
In other cases, Roberts argued the Supreme Court should invalidate a federal affirmative action program, that the Constitution permits religious ceremonies at public high school graduations, and that environmental groups lack the right to sue under the Endangered Species Act.
Roberts has only served as an appeals court judge for the past two years. George H.W. Bush first nominated Roberts to the D.C. Circuit in 1992, but his nomination died when Bill Clinton was elected President. The current president nominated Roberts again in 2001, but he didn’t get a floor vote in the Senate until 2003. Roberts was part of a three-judge panel that handed Bush an important victory last week when it ruled military tribunals of detainees at Guantanamo could proceed. The decision also found Bush could deny terrorism captives prisoners of war status outlined by the Geneva Conventions.
Roberts will now undergo a background investigation. Then his nomination will be considered by the Senate Judiciary Committee. The Committee Chair, Senator Arlen Specter of Pennsylvania, has said he wants to schedule hearings by late August or September. The court is due to open its next session in October.
Today we’ll spend the rest of the hour looking at the nomination of John Roberts to the Supreme Court. We’ll go to break, and then we’ll be joined by our guests. Among them, representative of the New York Civil Liberties Union and Nancy Northup, President of the Center for Reproductive Rights. We will go to her first to get her response to his position on abortion. Stay with us.
AMY GOODMAN: We turn now to President Bush’s nomination of his first Supreme Court Justice, John Roberts. We’re joined by a number of guests in our New York studio. Nancy Northup is here, President of the Center for Reproductive Rights. On the telephone we’re joined by Jamin Raskin, an American University law professor and author of Overruling Democracy: The Supreme Court vs. The American People. Art Eisenberg joins us, Legal Director of the New York Civil Liberties Union. He argued the case Burdek v. Takushi before the Supreme Court. Gary Marx is Executive Director of the Judicial Confirmation Network. He also worked as a coalition organizer for the Bush-Cheney national campaign in 2004 and served as Development Director and lobbyist for the Family Foundation of Virginia. And Ralph Neas is with us, President of People for the American Way Foundation, joining us from Washington, D.C. Let’s begin with Nancy Northup. Your response to the nomination of Judge Roberts to be the next Supreme Court Justice.
NANCY NORTHUP: Well, Americans who care about women’s reproductive health and decision-making should be concerned about Judge Roberts’s nomination to the U.S. Supreme Court. As you talked about before, he has in his legal career advocated for the reversal of Roe v. Wade, and it’s not just a matter that he was a government attorney who was on a brief. He was a Principal Deputy Solicitor General of the United States. It’s a high ranking position, and it was a centerpiece of the Bush I administration, as it had been of the Reagan administration, to ask the court again and again to reverse Roe v. Wade. It was the policy of the department. He was a high ranking policy official in that department, and we should have very close questioning of Judge Roberts when he is before the Senate confirmation process, because what people do is critical, and we need to find out if these are, in fact, his beliefs.
AMY GOODMAN: Jamin Raskin, what about the comment that you really don’t know what Judge Roberts thinks, even though he wrote the brief that said Roe v. Wade should be overturned, because he was just doing the bidding of his client?
JAMIN RASKIN: Well, he certainly was representing the Solicitor General’s office and the administration, and that had been the policy of both Bush Sr. and also Reagan. Under Solicitor General Charles Fried, they had been advocating for an overruling of Roe v. Wade. And in that case, Rust v. Sullivan, they were pushing the idea that there was nothing unconstitutional about prohibiting abortion counseling in federally funded clinics, and they won before the Supreme Court in a 5-4 decision there.
So, you know, I think that for the opponents of the nomination, I think trying to tease out some serious answers about his views of Roe v. Wade and Casey and privacy is the most promising avenue of attack, but personally I feel like the nomination is a reflection of the weakness of Bush politically at this point. He, you know, clearly would have preferred to go with more of a movement right wing conservative, somebody like Edith Jones or Michael Luttig, but didn’t do that, I think, because he didn’t think that he could withstand the kind of bloodshed that there might be in the Senate. So this is a much safer appointment for him. It’s a much shrewder appointment, and I think it’s going to be, you know, it’s going to be very tough to take this guy on.
AMY GOODMAN: Gary Marx of the Judicial Confirmation Network, your response.
GARY MARX: Well, I think Judge Roberts is an absolute home run. He follows through on what the President promised to the American people, who is going to be a nominee who is going to interpret the Constitution as it’s clearly written and not, you know, be an activist from the bench and not legislate from the bench. You know, he’s the first nominee of the 21st century and I think America’s future is in safe hands with this guy.
You know, regarding the Roe v. Wade question, I don’t think it’s really a debate for this nomination. Clearly, Roe v. Wade is a 6-3 decision as the court stands now. And even if John Roberts is, you know, in support of correcting that decision and sending it back to the states and back to the people, even if that was the case, it would only be 5-4.
The real question on Roe v. Wade is abortion restrictions, issues like partial-birth abortion, parent notifications, which overwhelmingly the American people support, and those are the issues that will immediately come before him when he’s confirmed in October. He’ll have a case from New Hampshire on parent notification that he’ll have to, you know, address then. He’s a home run of a nominee, and I think he’s going to pass, but I do think Democrats are going to be split right down the middle on this one as they were on his previous nomination when he was passed in committee 14-3 and then passed overwhelmingly by voice vote in the U.S. Senate.
AMY GOODMAN: Ralph Neas of People for the American Way?
RALPH NEAS: Amy, we were extremely disappointed that the President didn’t name someone in the mode of Sandra Day O’Connor, a mainstream conservative who had been approved unanimously in 1981. Rather, as Tony Perkins, the president of the Family Research Counsel said last night, President Bush promised to nominate someone along the lines of Scalia and Thomas, and that’s exactly what he has done. If that’s true, this nomination of John Roberts, if confirmed, could be a Constitutional catastrophe. Sandra Day O’Connor, 17-18 times in just the last five or six years has been the fifth and deciding vote preserving privacy, preserving environmental protections, equal opportunity laws, preserving a woman’s right to choose, and many other fundamental Constitutional issues.
We did a report called "Courting Disaster," which looked at every dissent and concurring opinion of Thomas and Scalia going back to 1991 and 1986, respectively. With one or two like-minded justices, more than 100 Supreme Court precedents would be overturned. This is going to be a very serious confirmation process, as always. With all due respect to the advocacy organizations on all sides, the hearings will be the absolutely key phase of the confirmation process. I expect tough questions from Democrats and Republicans.
I think that the nominee who has got a sparse record has the burden of proving to the Senate and to the United States of America, to all of our citizens, that he has the commitment to equal justice under the law, that he has a commitment to protecting the rights of all ordinary Americans across this country. That’s a burden he has to meet. If there’s any doubt as to where his judicial philosophy is, the doubt should be resolved on behalf of the Constitution and the American people. If he doesn’t have a commitment to the bipartisan consensus that’s existed in this country the last 70 years, he should be rejected.
GARY MARX: Ralph, does that mean you will not oppose this nominee until the hearing?
RALPH NEAS: We are carefully studying the record as it is, both his record at the Circuit Court, and we’ve got problems with his ruling on the Endangered Species Act, we’ve got problems on a number of areas, and certainly we have problems with things that he advocated when he was with the Bush I administration. We are going to continue to look at it. I’m not sure what our timetable is going to be, but we’re going to continue to exhaustively examine his record and, of course, I’m sure that he will produce information regarding his positions at the Department of Justice and what he has been doing during his career to give more light to the committee as to where he is on his judicial philosophy. It certainly matters to us, of course, that every right wing and religious right leader has endorsed John Roberts and said he is excellent, he is exactly in the mode of Thomas and Scalia. So I think he’s going to have to show us, is he in the mode of a Clarence Thomas, a Scalia, or is he a mainstream conservative who will protect the legal and social justice achievements of the last 70 years? That’s the question.
GARY MARX: Well, we also appreciate the kind words he’s received from Joe Lieberman and Laurence Tribe and David Boies and many other liberals who understand that, you know, he’s going to be confirmed, he’s the mainstream nominee and much, you know, like the Republican majority treated Ginsburg and Breyer under Clinton, we expect to see that same kind of fair treatment from the Senate this time around.
RALPH NEAS: Well, Senator Lieberman clarified his remarks last night, and he wants to see what’s going to happen during the hearings. And, of course, unlike President Clinton going to Senator Hatch regarding Breyer and Ginsburg and getting his approval of them both before nominating them, we just went through a charade of a bipartisan consultation process. John Roberts was probably the choice from the very beginning. There was an appearance of consultation, but it was no consultation that led to a bipartisan unity candidate. I’m afraid this is going to turn out to be much more controversial than most people think.
AMY GOODMAN: It’s interesting you say he was the choice from the beginning, because some reports today saying that yesterday people in the White House were calling reporters and sort of suggesting it might be others like Edith Clements, although, of course, John Roberts was already the one who was chosen and was announced last night. I wanted to bring Art Eisenberg into the discussion, the Legal Director of the New York Civil Liberties Union who has argued before the Supreme Court and get your overall response to the choice of Judge Roberts to be the next U.S. Supreme Court Justice, but also to his decision just last Friday as part of the three-judge panel that handed the Bush administration a critical victory, by ruling that military tribunals could proceed at Guantanamo. Art Eisenberg.
ART EISENBERG: Before speaking to the merits or deficiencies of Mr. Roberts, I think it’s important to step back and talk about the confirmation process for a moment, because I think the Constitutional process of advise and consent is different for judicial appointments than it is when the President appoints officials to the Executive Branch of government. The President is entitled to great deference when he appoints within the Executive Branch, but when the President and the Senate jointly appoint to the Judiciary a co-equal independent branch of government, I think the President is not entitled to that same degree of deference. Indeed the President is entitled to considerably less deference, and I think it is important as this process continues to bear that in mind.
I also think it’s important to think about the educative function of the confirmation process in terms of judicial philosophy and explaining to the American people how judges reach decisions. We hear a lot about this concept of judicial activism. In fact, we heard Gary Marx just before speak about liberal judges being activists and how Judge Roberts is not an activist. This is a, I think, a hollow and sort of rhetorical exercise. There was a piece in The New York Times a couple of weeks ago by Paul Gewirtz, a Yale Law professor, who said essentially, "Well, you can define judicial activism in a variety of ways, but perhaps one of the best ways to measure judicial activism is to look at the question about how often a judge is inclined to overturn the legislative choices of the democratically-elected branch of government, Congress." And by that measure Gewirtz demonstrated that Justice Thomas is the most activist judge on the court and Justices Breyer and Stevens and Ginsberg are the least activist judges on the court.
So to throw around terms like "judicial activism" or "using the judicial process to legislate," I think are ultimately hollow and impoverished claims, but it requires, I think, the American people to understand what the judicial process is about, how judges go about making judgments from text, from history, from principle, and I think there will be an opportunity to explore all of those matters during the confirmation process.
AMY GOODMAN: And the Guantanamo tribunal decision that Judge Roberts participated in last Friday?
ART EISENBERG: Well, I think that’s a very disturbing outcome. The process that the government is affording detainees in Guantanamo, the labeling — unilateral labeling of individuals as "enemy combatants," and the refusal of this administration to even accord these combatants prisoner of war status, I think, violates international norms, it violates human rights principles, it violates due process, and is ultimately also an impoverished policy.
AMY GOODMAN: On that issue of violating due process, what exactly do these tribunals do? I mean, among the concerns that the — those that are brought before these tribunals cannot see the evidence against them?
ART EISENBERG: I think there are problems. I’m not sufficiently familiar with the specifics of the deficiencies, but there are problems both with the independence of the tribunals and the inadequacy of the process, including the process of confronting evidence against one.
AMY GOODMAN: Jamin Raskin, you wrote the book Overruling Democracy. Right now this is the first of President Bush’s selections for the Supreme Court, but there — it looks like there is at least another one, Judge Roberts also was Rehnquist’s clerk. What does that mean?
JAMIN RASKIN: Well, I think it means that he might — that they’ve positioned him slightly more moderately, more to the center than a number of the other names that were floated, which were truly horrific, people like Edith Jones or Judge Luttig from the Fourth Circuit. I mean, these are serious right wing activists, and I’m talking about political activists, not just judicial activists.
AMY GOODMAN: In what way, because we’re not just talking about Judge Roberts now, since there is going to be, most likely, another selection by President Bush.
JAMIN RASKIN: Let’s take Edith Jones from the Fifth Circuit. I mean, she has written a number of opinions which just put her anti-abortion, pro-life agenda right there on paper. And she has — there is one opinion I was looking at from Edith Jones where — in a labor case where she just threw out very clear findings of unfair labor practices and also in another labor case where she, despite the fact there were a lot of unfair labor practices in this case, the union won the election, and she found a very trumped up reason to throw the election result out, basically that the list of employees was flawed, but it was flawed because the management had provided a flawed list, and then when the management challenged the union’s victory, she was able to, you know, to use that as a reason to discard the case.
So I mean, there are some really extreme polemical, ideological right wing judges out there, and, you know, Roberts is cut from a somewhat different mode. I mean, he’s much more of an establishment conservative. He’s a graduate of Harvard College and Harvard Law School, President of the Harvard Law Review, Hogan & Hartson, D.C. Circuit for a couple of years, so he’s a safer pick from them and, you know, I think, you know, Ralph Neas is, of course, right, which is there’s got to be a very serious grilling and meticulous examination of his Constitutional views because he’s only been on the court for a couple of years. I mean, there’s a very thin paper trail here, but I think that if you look at the full sweep of judicial confirmation history, a candidate like this is a very tough one to stop.
But I do think that there can be important jurisprudential markers put down during this process that will allow us to have a very serious fight about the next person, because I think that’s when Bush is going to go for broke and try to get on, not a Rehnquist style judge, but a Scalia-Thomas style judge, and, you know, Ralph may be perfectly right that Judge Roberts is going to be like them, but there’s really no way to tell, and he’s going to be on his best and most demure behavior during the confirmation process.
AMY GOODMAN: Gary Marx, you are an organizer, were an organizer for the Bush-Cheney 2004 National Campaign. You’re Executive Director of Judicial Confirmation Network. How do you organize now? Where do you proceed from here?
GARY MARX: Well, I think it’s no mystery that a lot of our focus is going to be spent in those states that President Bush did very well in, that to have, you know, blue senators, those red states with blue senators, where the vast majority of those citizens in places like Nebraska and North Dakota and, you know, Indiana. You know, they support the President and they support his nominee, especially a place like Indiana where this nominee hails from. Senator Biden is going to have a difficult decision to make and Senator Kent Conrad in North Dakota is up for re-election in 2006.
We have a mainstream nominee who is one of the most qualified you’ll ever find, argued 39 cases before the Supreme Court, tremendous experience, tremendous personal integrity and humbleness, and I think it’s going to be very difficult for a lot of democrat senators in the middle like Mary Landrieu to somehow oppose this nominee and at minimum at least give him a fair up or down vote and not allow a filibuster to go forward on this nomination. I think filibuster is completely off the table now, and he’s going to — he will get a fair up or down vote and he’ll be confirmed but we’re going to spend a lot of our time talking with those particular — talking to those particular senators and letting them know that we have a positive, positive candidate who is one of the best that the President could possibly have, you know, hoped for to send to them and, you know, we’re going to have — we’re going to try to get out a positive message, despite what we expect to be a, you know, a spirited smear campaign coming from, you know, Ralph Neas and groups like him. Yeah, they’ve been doing this for 20 years and, you know, we have a — we’ve learned a lot from, you know, their example and a lot of how to, you know, get out a positive message in the face of that.
AMY GOODMAN: Well, we’re going to get Ralph Neas’s response in a minute. We have to go to break. I also want to ask about Judge Roberts writing for a unanimous three-judge panel, that it was Constitutional for police to arrest, handcuff and briefly jail a 12-year-old girl for, quote, "eating a single French fry in a Washington subway station," also joined the unanimous panel that allowed prosecution based on evidence taken from a stopped car’s trunk, even though the court found the police officer had no probable cause to search the trunk. We’ll talk about civil liberties. Our guests Jamin Raskin, American University; Gary Marx, Judicial Confirmation Network; Art Eisenberg of the New York Civil Liberties Union; Nancy Northup, President of the Center for Reproductive Rights; and Ralph Neas, head of People for the American Way. Stay with us.
AMY GOODMAN: We look at the nomination of Judge Roberts to be the next Supreme Court Justice. President Bush made the announcement last night in a White House primetime address. We’re joined by a roundtable of people responding to this selection, may well just be the first that president Bush makes. Again, looking at this decision that Judge Roberts wrote for a unanimous three-judge panel, that it was Constitutional for police to arrest, to handcuff, to briefly jail a 12-year-old girl for eating a single French fry, upholding the police in this. This was at a Washington subway station. Art Eisenberg of the New York Civil Liberties Union, your response.
ART EISENBERG: Well, I mean, it surely shows an insensitivity to concerns about police abuse. Without having sort of read the briefs and fully digested the opinion, I’m not sure what else one could say about it. My understanding of the case was that it was an analysis of an equal protection claim where juveniles were treated actually more harshly than adults and that Judge Roberts upheld that unequal treatment on the ground that the state has an interest in promoting the behavior of children, which is also suggestive of an attitude about the role of the state, which I think should be of some concern to conservatives. But at the level of tolerating police abuse, there seemed to be some insensitivity in the way that the opinion was constructed.
AMY GOODMAN: And this second point, as a civil liberties attorney yourself who appeared before the Supreme Court, joining this unanimous panel that allowed prosecution based on evidence taken from a trunk of a car, even though the court found a police officer had no probable cause to search the trunk.
ART EISENBERG: Well, I don’t know what that says about Judge Roberts’s view of the exclusionary rule. That has always been a subject of debate and controversy.
AMY GOODMAN: The exclusionary rule being?
ART EISENBERG: The exclusionary rule being that evidence that is illegally seized without probable cause or individualized suspicion, depending upon the circumstances, is excluded from evidence in a case. The Supreme Court adopted that approach as a prophylactic rule to protect Constitutional rights, and it has long been the subject of criticism by conservatives and folks who are advocating for a greater degree of law and order, and efforts to overturn the exclusionary rule, however, went before the Supreme Court, and the Supreme Court reaffirmed the vitality of the exclusionary rule, I think in an opinion by Chief Justice Rehnquist, if I’m remembering that correctly. And I think — so I don’t know what this says about Judge Roberts’s view of the exclusionary rule, but that should surely be the subject of further inquiry during the confirmation process.
AMY GOODMAN: Nancy Northup, President for the Center for Reproductive Rights, Roberts, again, as Deputy Solicitor General filed a friend of the court brief for the United States, supporting Operation Rescue and six other individuals who routinely blocked access to reproductive health care clinics, arguing protesters’ behavior didn’t amount to discrimination against women, even though only women could exercise the right to seek an abortion. Can you talk about this case?
NANCY NORTHUP: That’s right, and again, what’s important to remember here is he was Principal Deputy Solicitor General, the highest ranking political position, other than the Solicitor General.
AMY GOODMAN: And the Solicitor General was Kenneth Starr.
NANCY NORTHUP: Yes. And it was the decision to intervene in this case. The United States was an amicus in this case. They didn’t have to file a brief in this case. They chose to, and they did it not just in this case but in a lot of cases around the country in which they came in on the side of protesters against clinics and women, and if we go back and think about what was happening in the late 1980s and early 1990s, violence at clinics, scary things were happening, and enormous blockades by Operation Rescue that were preventing women from getting their reproductive health care. And it was the decision of John Roberts that he would come in on the side of the protesters and not on the side of women, so again, when we look at this case, when we look at the position that he took in Rust v. Sullivan, and overall, to have been part of a Department of Justice whose policy was to get the Supreme Court over and over again to overturn Roe v. Wade, those are serious questions he needs to answer in this confirmation process.
AMY GOODMAN: Explain Rust v. Sullivan.
NANCY NORTHUP: Well, Rust v. Sullivan was a law that said that family planning programs that get government money, not that they are going to use that money to perform abortions — that’s been prohibited — but that they could not even speak about it, a doctor could not even speak to his patient or her patient who says, 'Well, I think I would like to terminate this pregnancy, can you let me know if that's possible?’ couldn’t even talk about it. And the position in that case was that that wasn’t a First Amendment violation.
Now ultimately, unfortunately and regrettably, the Supreme Court agreed, but what’s significant about John Roberts’s role and the Solicitor General’s position was they asked the court to overturn Roe v. Wade. Wasn’t at issue in the case. They could just argue, as the Supreme Court eventually found, it wasn’t a First Amendment violation, but they went so far as to say we ought to overturn Roe v. Wade. That is a very aggressive position, and to suggest now that this isn’t the position of John Roberts is hard to take.
AMY GOODMAN: Well, when pressed in 2003 for his own opinion, he said there’s nothing in his personal views that would prevent him from fully applying Roe v. Wade.
NANCY NORTHUP: Well, one would assume that answer was about how is he going to act as a circuit court judge, who has to follow Supreme Court law. He must be asked in this confirmation process what are his views of Roe v. Wade, of Planned Parenthood vs. Casey. What’s his view of the most recent Supreme Court case which was 5-4, which said that the — as we’ve said since the beginning about Roe, that women’s health is the most important, is paramount and must be first. Where does he stand on behalf of women’s reproductive health?
AMY GOODMAN: Do you think it’s fair to raise the role of his wife, also a lawyer, Jane Sullivan Roberts, in Feminists for Life, which is a group that’s dedicated to overturning Roe v. Wade?
NANCY NORTHUP: Well, I don’t think you can ever, you know, pin a wife or husband’s view on each other, but what I think it probably indicates, and probably indicates why there’s so much excitement in the anti-choice movement about the appointment of John Roberts, is that it may indicate that they have some insight into what his personal views are.
AMY GOODMAN: We’re talking about the selection of John Roberts to be the next US Supreme Court Justice, the nomination by President Bush last night may just be his first nomination of a Supreme Court Justice. I wanted to turn back to Ralph Neas to give you a chance to respond to Gary Marx — Ralph Neas, President of People for the American Way — and also ask about how you are organizing. I mean, the estimates are up to $100 million will be spent by different groups on different sides of the confirmation process, $100 million. Where are you going to go from here?
RALPH NEAS: First, let me, Amy, respond to a couple of Gary’s Ad Hominem attacks. Factually, I’ve been working on Supreme Court nominations since Justice Stevens in 1975. I was a chief Republican counsel to Republican Senators Edward W. Brook and David Durenberger. Senator Brook has certainly taught me that there was a very different standard, of course, as Nancy was just explaining with respect to the appellate courts and the Supreme Court. For example, Bork was approved unanimously for the Circuit Court of Appeals and then, of course, was rejected by a 58-42 vote by the Senate in 1987.
A lot of people don’t realize that more than 20% of all Supreme Court nominees have been rejected by the Senate, and 60% of those never got an up-and-down vote. In fact, there have been three filibusters in the last 35 years at the Supreme Court level. There were 51 senators who were for Abe Fortas, at least 51, but he was filibustered by the Republicans successfully. Then there were two unsuccessful filibusters against Justice Rehnquist, Chief Justice Rehnquist, in 1972 and 1986.
And we have to remember that whoever gets on there is — if it’s John Roberts, that person could be on for 25 to 30 years, seven or eight presidential terms. We’ve got to remember that this is probably the most important domestic issue now facing the country, the future of the Supreme Court, and what happens with this nomination and maybe two or three more — President Bush in September of 2004 said he would get four nominations — so this is going to determine what the law of the land is going to be for maybe three or four decades.
I think we’re going to be finding out that John Roberts is Antonin Scalia in sheep’s clothing. And if that’s true, there could be scores of precedents that preserve our Constitutional rights, freedoms and liberties overturned in a relatively short amount of time.
We’re definitely going to be doing a massive national education campaign with our 750,000 members and supporters. We’ll be working with our 100 national partners across the country to make sure the people are engaged in this process, but with all due respect once again to the advocacy organizations, we hope that there will be a set of hearings like there was in 1987, a 2 1/2 week seminar on the Robert Bork hearings that truly taught the American people maybe more than they’ve ever heard about Constitutional law and Constitutional history.
The Senate’s advice and consent responsibility, the Senate hearings definitely are the critical element of any confirmation process. Whether it’s a Judicial nominee or an Executive Branch nominee, the Senate hearings always determine who is going to be confirmed, who is not going to be confirmed. The burden of proof will be on John Roberts. He has got to demonstrate for this lifetime position that could last 30 years, that he’s got the requisite commitment to equal justice under the law and to protecting the ordinary — the rights of ordinary Americans across this country.
JAMIN RASKIN: Amy, could I add something?
AMY GOODMAN: Yes, go ahead, Jamin Raskin of American University.
JAMIN RASKIN: I’m involved in a project called the Marshall-Brennan Constitutional Literacy Project, where a number of law schools are sending law students into public high schools to teach the Constitution. And I agree with Ralph that we need to have a national seminar about the meaning of the Constitution and the role of the Supreme Court, and I think that we can’t leave out young people. The case that you were referring to with the girl who was stopped and arrested for eating French fries, that actually happened to students who were part of our program, and on—
AMY GOODMAN: What do you mean, that happened to kids that were part of your program?
JAMIN RASKIN: Well, in other words, we’re teaching it in Wilson High School, and that’s — Wilson High School and Deale Junior High School were the places where they were stopping kids in the subway for French fries and, you know, the wrong objects and so on, and so we were involved in that process of trying to defend the rights of the kids there.
But the point I’m making is that on Constitution Day this year, which is September 16th, there’s a new federal law that was championed by Senator Byrd which requires every public and private school in the country to get federal funds to examine the Constitution, to talk about the Constitution. And Mary Beth Tinker, who won her case in the Supreme Court in 1969 wearing a black arm band is working with us to try to make Constitution Day Black Arm Band Day and to try to get students across the country to wear black arm bands, to talk about their rights, about student rights which are under attack and also about civil liberties generally, so that’s just to support the call for a kind of popular conversation about the meaning of the Constitution and the importance of our rights.
AMY GOODMAN: I wanted to ask you, Jamin Raskin, in your book Overruling Democracy, you have a chapter on democracy and the corporation. The Wall Street Journal notes today, "Business leaders who recently began reviewing the records of the White House finalist list placed Judge Roberts at the top of their candidate list. After leaving the first Bush administration in 1993, Judge Roberts practiced telecommunications, energy, and other business law in private practice." Your response.
JAMIN RASKIN: Yeah. Well, unfortunately, any of the names that were being floated by the Bush administration have had a lot more experience representing big businesses and corporations than labor unions. I mean, in the current political environment, it’s almost unthinkable that you would get a union side labor lawyer or a consumer lawyer or someone who had worked for Ralph Nader nominated to the Supreme Court. I mean, it just shows you how far to the right the political spectrum has shifted, if you compare it, say, to, you know, the kinds of people that Franklin Roosevelt was putting on the court, the New Dealers and people who were interested in the administrative state and regulation and so on.
It’s not — you know, it’s not like that now, and there’s no doubt that Roberts is a corporate — a distinguished corporate lawyer, a corporate side lawyer who pushes a business point of view. But again, it’s very hard to try to make that stick in a way that creates real political damage, and I think that it is the cluster of issues around reproductive privacy where liberals will have the most traction in terms of trying to tease out this nominee.
AMY GOODMAN: Among the things The Wall Street Journal talks about in his practice at Hogan and Hartson, Judge Roberts as an attorney defended Toyota Motor Corporation in a worker’s disability case.
JAMIN RASKIN: Yeah, well, you’re going to be able to find a lot of those, but there you will have people across the political spectrum, like, you know, Laurence Tribe, saying, 'Well, you know, this is a lawyer just doing his job' and, you know, there’s just no doubt that the lawyers at the big firms like Hogan and Hartson, which is a leading corporate law firm, those lawyers spend their time representing the interests of big businesses and not, you know, students who are being suspended or workers who are trying to organize, and so on.
AMY GOODMAN: Nancy Northup, President of the Center for Reproductive Rights, how hard are you going to fight this?
NANCY NORTHUP: Well, we are going to make sure that Americans realize that this is a very critical moment for people who care about reproductive health and rights of women, and we are going to be working with our allies to make sure that during the Senate confirmation hearings, as Ralph Neas has talked about, we need to have a full exploration of his Constitutional views, we need to engage on that, we need to not have the kind of statements we heard this morning, that it’s definitely going to be confirmed. The process is only beginning, and it’s very important that we find out what his views are, because the record of what he’s been willing to advocate for a lawyer, for the government, which is not for a private firm, but for the government in a policy position are very disturbing.
AMY GOODMAN: I want to thank you all for being with us, Nancy Northup, Gary Marx, Jamin Raskin, Art Eisenberg and Ralph Neas, and end up with a Washington Post final paragraph in one of their pieces today: "In the aftermath of the disputed 2000 presidential election, Roberts played a key, if quiet, role in the Florida recount. Although his name did not appear on the briefs, three sources who were personally aware of Roberts’s role said he gave Republican Governor Jeb Bush critical advice on how the Florida legislature could Constitutionally name George W. Bush the winner at a time when Republicans feared that if the recount were to continue, the courts might force a different choice."