As the Bush administration refuses to hand over documents written by Supreme Court nominee John Roberts, we talk to Yale University professor Bruce Shapiro about Roberts’ crucial ruling on military tribunals for Guantanamo detainees, his views on abortion and much more. [includes rush transcript]
Last week President Bush announced his nomination of Judge John Roberts to replace retiring Justice Sandra Day O" Connor on the U.S Supreme Court. Judge Roberts is a conservative who has served on the US Court of Appeals for the DC Circuit since 2003 and also served in the administrations of George HW Bush and Ronald Reagan. He is a longtime George W Bush supporter who donated $1,000 dollars to his 2000 presidential campaign.
Between 1989 and 1993, Roberts was principal deputy solicitor general, the government’s second highest lawyer, under Kenneth Starr. Some Democratic senators have said they want to see all the documents drafted by Roberts when he served in the two previous Republican administrations in order to understand Roberts" views on issues such as abortion, workers’ rights, women’s rights, civil rights and the environment. Yesterday, the Bush administration said there would not be a blanket release of the documents and that they would instead would look at the requests on a case-by-case basis.
However, Roberts has argued in a number of cases that give clear indication of his stance on some of these issues. He wrote the governments’ 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." In other cases, Roberts has 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.
Roberts was also part of a three-judge panel that handed Bush an important victory the week before Bush announced Roberts nomination to the bench. In fact, the day before the ruling was issued, President Bush interviewed Roberts at the White House. The next day, the court released their ruling 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.
AMY GOODMAN: We go now to Yale University, where we are joined by Bruce Shapiro, contributing editor for The Nation magazine and a national correspondent for Salon.com. He also teaches journalism at Yale. His latest article is at The Nation online and is titled "The Stakes In Roberts’s Nomination." Welcome to Democracy Now!, Bruce Shapiro.
BRUCE SHAPIRO: Glad to be here.
AMY GOODMAN: It’s good to have you with us. Well, let’s go to that last issue, the issue of the Guantanamo ruling. Talk about its significance.
BRUCE SHAPIRO: Well, the case involves a man name Hamdan, who was allegedly Osama bin Laden’s driver. He is one of the detainees at Guantanamo, captured on the field in Afghanistan, who the military has designated, the Pentagon has designated, for military tribunals, trials without benefit of review of court. A lower federal court had thrown these tribunals out, issued an injunction against them, saying that they violated the Geneva Convention and were — and represented an illegitimate extension of presidential authority.
Well, one day after being interviewed by President Bush, a Federal Appeals panel, three judges of which Judge Roberts was a member, handed down a unanimous decision — all three judges, by the way, Reagan-Bush appointees — permitting the tribunals to go forward, reinstating them, and in particular, invalidating those Geneva Convention protections, and saying, in fact, that the courts had no business reviewing this question of Geneva Convention status, that it was purely a matter for the Executive Branch.
The crucial thing here is not just that this is a single victory for the White House and that Judge Roberts was part of it, but rather, if you look over his career, deference to the Executive Branch, a sense of favoring the power of the Presidency over the other branches, is the most consistent thread of his career. This is a man who, as a lawyer, served the Executive Branch of government for many years. This is a judge who in the last couple of years has issued some striking rulings. For example, in the case of a teenager arrested for eating a single French fry on the D.C. Metro, thrown into handcuffs and put in a police vehicle. Judge Roberts wrote that this was a reasonable policy on the part of police to discourage delinquency. This is a guy who is in love with the power of the Executive Branch, and I think what that says is that the deepest motivation of the Bush administration in choosing him, along with the questions of confirmability and so on, is, in fact, that he’s a judge who will reliably extend presidential power in the war on terror. I think that’s the bottom line.
There are a huge number of cases coming through the pipeline, cases from Guantanamo, cases involving the PATRIOT Act, cases involving prisoners in other U.S. facilities, cases involving rendition. All of these are going to come forward and having that kind of an ally who genuinely follows in the tradition of Chief Justice William Rehnquist, who kind of cut his eye teeth as Deputy Solicitor General defending the Nixon administration’s invasion of Cambodia without Congressional approval, that is more than anything else, I think, what the Bush Administration wanted in this nomination.
AMY GOODMAN: Bruce Shapiro, talking about the ruling on the side of the police in the case of the arrest of the 12-year-old girl who was eating a single French fry in the Washington Metro. The latest decision, Judge Roberts siding with police around the issue of — in searching the trunk of a suspect’s car. He was on the losing end of an Appeals Court decision on whether officers were within their authority to search the trunk of a suspect’s car. "Roberts dissented in a 2-1 ruling" — I’m reading from Newsday right now — "from the US Court of Appeals for the District of Columbia, reversing a man’s conviction for unlawful possession of a firearm. The decision was released by the court Friday, even as Roberts was touring the Senate in a political candidate-like search for confirmation votes."
BRUCE SHAPIRO: We have to remember, I think, Amy, that there are really many kinds of conservatives, you know. It doesn’t really help us to say, "Is Judge Roberts a conservative or a moderate or a textualist or a liberal?" That’s not really the point. You know, there are some conservatives, libertarian conservatives, who take great exception to the PATRIOT Act, who worry about police search and seizure powers of the kind you were just discussing, who worry about the idea of the President simply seizing power to classify prisoners abroad or to go across national boundaries in violation of treaty with no possibility of judicial review. This is not about liberal and conservatism. This is about an image of the imperial presidency or an image of strong executive power, whether you’re talking about a local police force or the White House. And that, I think, is the tradition which Judge Roberts most definitively belongs to.
AMY GOODMAN: Just to amplify on that story, Roberts said in his minority opinion that U.S. park police were justified in searching the trunk of a car and seizing a .25 caliber pistol found there after the officers performed a records check and discovered the vehicle’s temporary license tags were stolen in Fairfax County, Virginia. They pulled the car over because the tag light on the license plate wasn’t functioning. Roberts wrote, in his dissenting opinion, "Stolen tags often accompany stolen cars."
BRUCE SHAPIRO: I think this harkens back again to that — to the French fry case, which seems so trivial. You know, a child eating a McDonald’s French fry on the Metro. What’s striking is not even the particular position that Roberts took, but the language that he described this as part of a reasonable campaign against delinquency. What that says to me is that beneath this very amiable, genial surface of Judge Roberts who has many friends in Washington on both sides of the aisle, who has choreographed his own career in public life with great care, beneath that there is a kind of ideological rigidity and it’s going to become very important, I think, for the Senate to explore that, and going to be particularly important for the Senate Judiciary Committee to get hold of some of the documents, some of the records, some of the memos of his years as Solicitor General so that we can get a better sense of his thinking and understand, I think, more clearly that this is a systemically, ideologically-driven conservative of a particular type.
AMY GOODMAN: We’re talking to Bruce Shapiro, teaches journalism at Yale University, contributing editor for The Nation, and a national correspondent for Salon.com. What about the documents that the Bush administration is deciding whether or not to hand over, but will not hand over, the group of them?
BRUCE SHAPIRO: Well, you know, the Bush administration’s argument is that attorney-client privilege holds between the Deputy Solicitor General or Deputy White House Counsel, which were the two jobs that Roberts held. Deputy White House Counsel under Reagan, Deputy Solicitor General under Bush I. Certainly with regard to his years as Deputy Solicitor General, the client in that case is the United States government. The client is the people of the United States, and I think we will see some real pushing back from Democrats on the Judiciary Committee on this point. There is no blanket attorney-client privilege. In fact, when Chief Justice Rehnquist was up for confirmation, he provided voluntarily many of his own memos from when he was Deputy Solicitor General, or rather Deputy Attorney General, under President Nixon. And I think that while the White House may claim executive privilege today, we’re going to see an accommodation. We may even see Judge Roberts waive his privileges on some of these things, because it’s not going to look good to have a judge up for the highest court in the land seeming to have something to hide, especially when his own paper trail is intentionally, I think, so thin.
It’s really striking that — you know, as the Washington Post is reporting this morning, Judge Roberts seems to, in fact, have been a member of the Federalist Society, the sort of conservative alternative to the Bar Association. It doesn’t appear on his resume. He has stepped clearly around that, trying not to be tagged as a Federalist Society member. Yet it does appear that at one point in the 1990s he was active in it. You know, well, it’s not a big deal. You know, we don’t believe that someone should be denied membership on the Supreme Court just because of the group that he’s a member of. But it does say that beneath the amiable surface, beneath the kind of bipartisan friendships that he has cultivated around Washington, Judge Roberts is and has been a conservative activist, a Republican activist, a loyal member of the G.O.P. judicial patronage network, and that’s his main qualification, in effect.
AMY GOODMAN: We’re talking to Bruce Shapiro. We’re going to go to break and then come back to him, and then we’ll find out what has happened with Haitian priest, Father Jean-Juste, who is in solitary confinement right now in Port-au-Prince.
AMY GOODMAN: We are talking to Bruce Shapiro, contributing editor for The Nation and a national correspondent for Salon.com, is speaking to us from Yale University where he teaches journalism. We are talking about the Bush nominee for the Supreme Court, Judge John Roberts, a lot made of his wife being very active in Feminists for Life, a group that very much wants Roe v. Wade overturned, and the question of whether this is relevant. Senator Ted Kennedy says that’s off limits. What are your thoughts, Bruce Shapiro?
BRUCE SHAPIRO: Well, I certainly don’t think that any nominee should be punished for the political associations of his spouse. I do think the real question here is the context of Judge Roberts’s own thinking on abortion rights. Now, back in 1991 in Rust v. Sullivan in a brief you mentioned in the introduction to our segment, Judge Roberts wrote that Roe v. Wade was wrongly decided and should be overturned. He now claims, claimed in his confirmation hearings as an appellate judge, that that simply represented what his client, the President of the United States, wanted him to do; it was the position of his administration, and he was doing what any lawyer would do.
Well, you can say that, but the fact of the matter is that Judge Roberts is not someone who has chosen a diverse range of clients over the years. He has had two kinds of clients his entire life. Mostly he has had Republican political clients, the first Reagan — the Reagan administration and the first Bush administration, and then along the way, he has had corporate clients, business clients. He has never taken the other side on abortion rights. He has never taken the other side on environmental cases. He has never taken a pro bono case on behalf of criminal defendants. There’s no evidence anywhere that Judge Roberts harbors what you might call a balanced view of these issues.
Now, on abortion rights, I think the Bush administration was really hoping to play to both constituencies. They found in Judge Roberts a person who on the one hand has this anti-abortion track record, so they could persuade the religious right to go along, a religious right which is increasingly anxious about where this administration is going to go. And on the other hand, they could persuade pro-choice, moderate voters and pro-choice moderates in the Senate that that was all history and that, in fact, Judge Roberts thinks, as he said in his confirmation, that Roe v. Wade is now settled law after Roe v. Wade and Planned Parenthood v. Casey.
You know, the senators, if they are smart, will ask him a lot of questions about the right to privacy and whether the Constitutional right to privacy, in which Roe v. Wade is grounded, exists, because someone like, let’s say, Judge Clarence Thomas doesn’t think that that right to privacy exists. That’s really at the heart of this. It’s not about his wife, and it’s not about his own private religious views, but rather how Judge Roberts sees the precedent of Roe v. Wade, the precedent of Planned Parenthood v. Casey, in which three Republican nominees, Bush-Reagan nominees, Justice O’Connor, Justice Souter, and Justice Kennedy, all wrote together that reproductive freedom has now become part of women’s equality in the United States, so that two generations of women have come to understand control of reproduction as central to their equality. That was what three Reagan-Bush appointees said in Planned Parenthood v. Casey about Roe v. Wade. And I think the Senate will want to know if Judge Roberts feels the same way. That is really the question.
AMY GOODMAN: In the next session of the Supreme Court, Planned Parenthood has a case before the nation’s highest court in New Hampshire.
BRUCE SHAPIRO: Indeed, and this is a very important case involving funding for abortion in New Hampshire, involving state regulation of funding, state limitations on funding. There are other important cases working their way through the pipeline on third trimester abortion and other infringements on reproductive freedom. And my guess is that where the Supreme Court is headed is not to a blanket reversal of Roe v. Wade–I think that’s not in the cards yet–but rather a piecemeal erosion of reproductive rights so that even what are now already a crisis in abortion services, a crisis in reproductive health services in many rural areas and poor areas of the country, is likely to go critical. And I think that’s really where we’re headed and why on the question of abortion rights this — the Roberts nomination is so troubling. We’re not yet at Roe v. Wade being overturned, but we are at the point of the court making abortion in big parts of the country much harder to get.
AMY GOODMAN: Bruce Shapiro, you write in your piece in The Nation, "The Stakes in Roberts’s Nomination," "Judge John Roberts is a white male who has spent his entire adult life in Washington. Those facts themselves mean nothing, but they do beg a question: What could be so compelling about Judge Roberts as a Supreme Court candidate that the White House was willing to forswear all claims on ethnic diversity and all geographical political advantage, not to mention the express desire of Laura Bush and countless other women to see a nominee of their gender?" What do you expect will happen next? Will, well, Judge Roberts’s boss, Rehnquist, he was a clerk for Rehnquist, leave before the next term? Will we see two candidates almost at the same time being questioned by the Senate?
BRUCE SHAPIRO: I think that if Chief Justice Rehnquist can make it through this next term, he will. I think the Chief Justice, first of all, wants to hold on to power, and secondly, does have an interest in institutional continuity and would take great delight in sitting on the same court as his protégé, really, ensuring the continuance of the Rehnquist revolution, particularly since, I think, the kind of conservative that Judge Roberts is fits in so well with the Rehnquist vision: someone who on the one hand believes in eroding the power of the federal government over civil rights enforcement, environmental regulation and so on, and on the other hand believes in strengthening the power of the Executive Branch, giving police agencies, giving the state, giving, in particular, the presidency ever greater power. So I don’t think Rehnquist is going to retire.
I do think that this may yet be an unpredictable fight. We have to remember that at this point in 1991, the Clarence Thomas nomination looked like a pretty sure thing. There was no sense of the turbulent waters it was headed into, at least if you were talking to senators. At this point back in 1986, Judge Robert Bork, a quite distinguished Yale professor who had been nominated by the Reagan administration, there was — while there was a big fight, there was no sense that he was, in fact, going to lose. It’s very important to remember that Supreme Court nominations can turn unpredictable, and there’s a lot of time between now and the middle of September, a lot of terrain in those memos, at least some of which will be released, a lot that will probably turn up about Judge Roberts himself that can change the dynamic in Washington. And that’s really what we should be looking for in the next couple of months.
AMY GOODMAN: Bruce Shapiro, I want to thank you very much for being with us. Bruce Shapiro writes for The Nation magazine, for Salon.com, and teaches journalism at Yale University, from where he is speaking to us right now.