In this hour-long online special we examine the legal background and history of Judge John Roberts. Earlier today President Bush nominated Roberts to be Chief Justice of the Supreme Court replacing the late William Rehnquist, who died at the age of 80 on Saturday.
Listen (MP3) || Listen (Real Audio) || Watch (Real Video) Today we spend the hour on John Roberts, going back through Democracy Now!’s coverage of his record. We speak with:
- Nancy Northup, President of the Center for Reproductive Rights
- Gary Marx, Judicial Confirmation Network
- Ralph Neas, People for the American Way
- Jamin Raskin, American University Law professor and author of “Overruling Democracy.”
- Alfred Ross, the founder and President of the Institute for Democracy Studies
- Rev. Jesse Jackson, civil rights leader
- David Luban, Georgetown University Law Professor, He co-wrote an article for the online magazine, Slate, entitled “Improper Advances: Talking Dream Jobs with the Judge Out of Court.”
- Michael Ratner, President of the Center for Constitutional Rights.
AMY GOODMAN: A showdown is scheduled to take place on Capitol Hill as the Senate Judiciary Committee begins hearings on the nomination of John Roberts to be Supreme Court Chief Justice.
Roberts–a conservative appeals court judge–was tapped by President Bush to replace retiring Supreme Court Justice Sandra Day O’Conner. Her resignation created a vacancy on the court for the first time in 11 years and set in motion a high stakes political battle in Washington that could last for months. On Monday, two days after Chief Justice Rehnquist died, Bush nominated Roberts to replace him as Chief Justice. 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.
In this special, we spend the hour going through John Roberts record. But first, lets go back to July 19th, when President Bush first announced the nomination 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: 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 who was considered a swing vote on the closely divided court. After Bush made the announcement, 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 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. 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.” He 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.”
Since his nomination, tens of thousands of pages of documents have been released from Roberts’ days working in the Reagan White House. In one paper, Roberts wrote that a controversial memorial service for aborted fetuses was QUOTE “an entirely appropriate means of calling attention to the abortion tragedy.” He also approved a telegram written by President Reagan that compared Roe vs. Wade to the Dred Scott decision of 1857, which upheld slavery.
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.
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 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 was first nominated to the D.C. Circuit Court by George HW Bush 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. Just one week before his nomination to the Supreme Court in July, Roberts was part of a three-judge panel that handed Bush an important victory in the so-called war on terror. 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.
Today we spend the hour on John Roberts, going back through Democracy Now!’s coverage of his record. The day after his nomination was announced we hosted 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 and Jamin Raskin, American University Law professor and author of “Overruling Democracy.” Nancy Northup began by responding to the nomination.
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.
AMY GOODMAN: Ralph Neas of People for the American Way, speaking on Democracy Now! as part of a roundtable discussion the day after President Bush announced Roberts’ nomination.
One week before being nominated to the bench, Roberts was part of a three- judge panel that handed President Bush an important victory 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. We spoke with Bruce Shapiro, contributing editor for The Nation magazine and a national correspondent for Salon.com . He also teaches journalism at Yale. He authored a piece at The Nation online titled “The Stakes In Roberts’s Nomination.” He began by talking about the significance of the Guantanamo Bay ruling.
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 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: Yale journalism professor Bruce Shapiro. He is a contributing editor for The Nation magazine and a national correspondent for Salon.com speaking on Democracy Now June 25. Soon after his nomination, Roberts claimed he could not remember whether or not he joined the Federalist Society. Roberts and the White House said the nominee had no recollection about his possible membership. But the Washington Post reported that it had obtained a 1997-98 Federalist Society leadership directory listing Roberts, then a partner in a private law firm, as being a steering committee member in the group’s Washington chapter. Roberts declined to say why he was listed in the directory when asked by a reporter about the discrepancy during a morning get-acquainted meeting with Sen. Dianne Feinstein. And White House Spokesperson, Scott McClellan, was asked about Roberts and the Federalist Society at a daily press briefing.
REPORTER: It was reported, as you know, that he was in the Federalist Society, which is an important legal group in conservative — on the conservative side. Then the White House said, `No, it was not the case.’ And now it appears that he was part of the leadership group. What is the real story here?
SCOTT McCLELLAN: He has no memory of ever joining or paying dues to the Federalist Society. He has no recollection of that. He has participated in events and panel discussions. He has given speeches at Federalist Society forums, but he doesn’t have any recollection of ever paying dues or joining the organization.
REPORTER: Isn’t that kind of a simple thing to nail down? Prior to now?
SCOTT McCLELLAN: Well, David, he has answered this over the last few years. The issue has come up, and he certainly has participated in some of the events that they have sponsored or that they’ve hosted, but he just doesn’t have any memory of ever paying any dues to the organization.
AMY GOODMAN: White House Press Secretary Scott McClellan being questioned Monday at the White House. Meanwhile, another man with close ties to the Federalist Society, Timothy Flanigan, is on Capitol Hill today, where his confirmation hearings begin in front of the Senate Judiciary Committee. He has been nominated as Deputy Attorney General. We are joined now in Washington, D.C. by the man who uncovered John Roberts’s membership in the Federalist Society. Alfred Ross is founder and President of the Institute for Democracy Studies. Welcome to Democracy Now!
ALFRED ROSS: Well, Amy, it’s a pleasure to be here.
AMY GOODMAN: It’s good to have you with us. Can you tell us about what you know, what evidence you have that John Roberts is a member of the Federalist Society, and then, of course, what the Federalist Society is?
ALFRED ROSS: Well, Roberts, whether he’s paid his dues or not, was prominently listed in the 1997/1998 leadership directory published by the Federalist Society itself. So it is very difficult to believe that he didn’t have any membership. He was on the Steering Committee. The important question is not whether he paid dues as a member or not. The question really at stake here is where does Roberts and his Federalist Society cronies plan to steer our ship of state. If one looks at the history of the Federalist Society, which was established at the inspiration of Robert Bork in the early 1980s, their entire trajectory has been to move our judicial system in an extremely radically right wing direction.
In order to effectuate this, the Federalist Society has established 15 practice groups which you can find on their own website which is fed- soc.org. These 15 practice groups are busy developing new legal theories for every area of American jurisprudence, from civil rights law to national security law, international law, securities regulations law, and so on. And if one goes through the publications of their practice groups, one can only gasp not only at the breadth of their agenda, but the extremism of their ideology.
It is not insignificant that today Timothy Flanigan will have hearings at the Senate Judiciary Committee on his nomination to be Deputy Attorney General of the United States. In the same leadership directory that lists John Roberts on the Steering Committee to the Federalist Society, it lists Timothy Flanigan on the Program Committee of the Federalist Society. And both men have their own personal track records in the right wing of American jurisprudence. In 1987 the Senate Judiciary decided that Robert Bork’s ideology was so far outside the mainstream of American jurisprudence that he was not fit to serve on the Supreme Court. The same kind of strict scrutiny should be applied to John Roberts who is on the Steering Committee of the organization that Robert Bork inspired.
AMY GOODMAN: So the Federalist Society founded under the first term of Ronald Reagan?
ALFRED ROSS: Yes, it was established in early 1980s, on their website, they claim 1982.
AMY GOODMAN: And how did you get a hold of the documents? Here you have The Washington Post first doing a piece, saying that John Roberts is a member of the Federalist Society, then they retracted that, and now yesterday another piece saying that they were wrong, that in fact they were right the first time that he was a member.
ALFRED ROSS: Well, we were able to obtain the document, which is not particularly secret, although it was their own internal leadership directory. I mean, it has a very glossy cover, it must have had hundreds, if not thousands of copies made and distributed all across the country. My recollection is that someone handed it to me at one of their meetings, which anyone can go to. The question is not the document itself, the issue is why did the White House issue this unprecedented series of calls to the national media to try to cover up his membership? And the answer to that question is that the White House does not want the Senate Judiciary Committee or the American people to understand the full agenda of the Federalist Society. Timothy Flanigan was one of the people who signed onto the Supreme Court brief in 2000 in Bush v. Gore to try to get this born- again Christian, George Bush, into the White House. The goal was not just to get Bush into the White House. The goal was to use the Bush Administration to implement the wide-ranging agenda of the Federalist Society, and it wasn’t coincidental that along with Flanigan on the cover of the brief was the name of Ted Olson, Chair of the Federalist Society in D.C., who then became Solicitor General of the United States and argued strenuously against affirmative action and other programs while he was Solicitor General.
AMY GOODMAN: Timothy Flanigan, the man who is before the Senate Judiciary Committee today, nominated as Deputy Attorney General of the United States.
ALFRED ROSS: Yes, I think it’s important for the Senate Judiciary Committee to inquire into the jurisprudence of the practice groups of the Federalist Society. But their agenda goes beyond just the substantive law of the different practice groups. As the right wing legal groups begin to push their theories of devolution, basically states’ rights, moving more of American law into the states, the Federalist Society recently launched a state judicial selection project so they could move not only their judges into the federal courts, but also into the state courts. If they accomplish their agenda of dominating the federal and state courts, they will have an effective stranglehold on the American legal system.
The man who was chosen to head the Federalist Society state judicial selection project is a chap named Clint Bollick, who wrote a book called The Affirmative Action Fraud and edited another book called Unfinished Business: Civil Rights Strategy For the Next Century. Again, it is not coincidental that the introduction to Unfinished Business was by Charles Murray, who wrote The Bell Curve, arguing basically that African Americans had a lower IQ than white people, and therefore were basically forever limited in how far they should get, making affirmative action programs useless.
AMY GOODMAN: We’re talking to Al Ross, head of the Institute for Democratic Studies, who got a hold of the document that said that John Roberts, the Supreme Court nominee, was on the — in the directory of the Federalist Society in 1997/1998. Now, John Roberts claims he cannot remember if he joined or not. Your response to that, Al Ross?
ALFRED ROSS: Well, we can’t yet do an MRI scan of his brain to see whether there is a memory cell there or not. But it would be very difficult, indeed, for him to deny his association with the organization. How does he get to be listed as a member of the Steering Committee? And I suppose the Senate Judiciary Committee could inquire and ask for whatever correspondence existed. But again the important point here is not this memory lapse, which is strange given his reputation as having one of the more spectacular memories in the legal community in Washington, D.C., but again the growth of this organization within the Bush Administration and the implementation of its views.
The Inspector General of the Department of Defense had been also with Roberts on the Steering Committee of the Federalist Society, and Paul Clement, the current Solicitor General of the United States chaired the litigation practice group for the Federalist Society. Alex Acosta, another Federalist Society member and leader was recently deployed to be the U.S. Attorney in the critical state of Florida having served as Assistant Attorney General of the United States for Civil Rights.
So Roberts can deny it, and people can decide whether or not to believe him. But it would be hard for him to deny his association with a group of lawyers furthering the agenda of the Federalist Society. Before the election of 2000, we actually published a brief on the Federalist Society, which people can obtain by contacting our office, the Institute for Democracy Studies in New York. But the agenda is there, it’s on their website. It `s clear that Roberts was on the Steering Committee. Whether his partners at Hogan and Hartson realize that he was there feeding information to the Federalist Society and presumably trying to recruit and helping develop their agenda.
AMY GOODMAN: Al Ross, why the title Federalist Society? Why the name?
ALFRED ROSS: Well, it’s interesting. At one of their recent conferences at Yale Law School, which was opened to anyone who wanted to attend, they actually chuckled about the fact that originally they were going to name it the Anti-Federalist Society, but it didn’t sound very good, so they called it the Federalist Society. The point here is the — this organization of extremist lawyers really has no principles about what they call themselves, whether they remember if they were members of the Steering Committee or not. The point is whatever sells and moves their agenda forward, they’re prepared to use. And this debate over Federalist or the Anti-Federalist is really illustrative of the underlying cynicism and ruthlessness of this organization.
AMY GOODMAN: Are you saying that the White House called The Washington Post to get them to retract that Roberts was a member of the Federalist Society, which then they did and now with the documents they are reasserting that he was?
ALFRED ROSS: Well, that’s clear. They not only called The Washington Post but they called a number of other prominent newspapers across the country. And the reason why they were doing it is they very much did not want the Senate Judiciary Committee or the American people to unravel the thread of the Federalist Society and begin to discover the incredible penetration of its membership throughout our judicial system and, more importantly, the underlying ideology that the group represents. Roberts himself has only sat on a federal court for basically about two years, which is amazing for someone to be appointed to the Supreme Court. And the question is how does one begin to access his underlying ideology? And this is a very important way for the Senate Judiciary and the American people to understand Roberts, Flanigan, and the Bush administration’s goals for our legal system.
AMY GOODMAN: Al Ross, while you may not agree with the Federalist Society, apparently there are tens of thousands of members. Why doesn’t, with conservatives in the ascendancy in the government, why don’t they just say, `Sure, he represents our ideology? What is wrong with that?’
ALFRED ROSS: Well, it’s interesting. A number of conservatives actually were upset with the White House for trying to cover up the connection because they’re quite proud of it. But I think the issue here is the, I believe, correct awareness by the Bush administration’s spin masters, that the majority of the American people would not support the ideology of the Federalist Society, even though admittedly thousands of right wing lawyers are very glad to further their agenda.
AMY GOODMAN: Finally, do they take a stance on abortion?
ALFRED ROSS: Well, officially the Federalist Society, as an organization, doesn’t take a stance on anything. But that’s rather a sham. Throughout their literature and at their forums, they endorse not only anti- abortion ideology, but extremist ideology on civil rights, national security law, telecommunications law, and every other issue you can possibly imagine.
AMY GOODMAN: Alfred Ross, the founder and President of the Institute for Democracy Studies speaking on Democracy Now in late July.
Soon afterwards, the White House released tens of thousands of pages of documents stemming from Roberts service as an attorney for the Reagan administration. Questions began to be raised over Roberts’ role in the civil rights debates of the 1980s. The documents showed that Roberts advocated a narrow interpretation of a variety of civil rights laws, and presented a defense of congressional efforts to strip the Supreme Court of jurisdiction over busing, abortion and school prayer cases.
Aides for Massachusetts Senator Edward Kennedy distributed materials that Roberts drafted while at the Justice Department and White House counsel’s office during the Reagan administration. The documents showed Roberts expressing criticism of an extension of the Voting Rights Act, support for a court ruling narrowing the civil rights requirements on colleges, and doubts about a law to combat discrimination in housing. As the news broke Democracy Now! co-host Juan Gonzales and I spoke with the Reverend Jesse Jackson and Ralph Neas, president of People for the American Way. Neas began by laying out Roberts’ record in the early 1980s.
RALPH NEAS: From 1981 to 1993, the Reagan and Bush administrations did everything possible to turn back the clock on civil rights protections for women, for minorities, for people with disabilities and older Americans. It looks more and more with every passing day and with every passing revelation that John Roberts was at the epicenter of all of these efforts during the 1980s and early 1990s. The American people have a right to know precisely what his role was.
According to the Washington Post in articles that they have written and others have written, it appears that he is even to the right of Ted Olson, one of the most archconservative lawyers in the country and in the Reagan- Bush administrations. If this is true, I think that the composite picture that the White House tried to create last week, which is somehow that this guy is an above-the-fray lawyer representing truly and clearly his clients, is not exactly what this man really is. This is someone who went and helped Jeb Bush in December and November of 2000. This is someone who is a leader in the Federalist Society. This is someone who looks like he was a partner with William Bradford Reynolds and all those radical right activists in the Reagan and Bush years.
This is troubling. This is not someone who’s in the mode of a Sandra Day O’Connor. This is looking more and more like someone who’s in the mode of Antonin Scalia and Clarence Thomas. The American people have a right to have all of these documents. The Senate needs all of these documents to exercise responsibly its advice and consent responsibilities, but it looks like the Bush administration is going to stonewall.
JUAN GONZALEZ: We’re joined also by Reverend Jesse Jackson on the phone from Washington. Welcome to Democracy Now!, Reverend.
REV. JESSE JACKSON: Good morning. Good to share with you today.
JUAN GONZALEZ: Could you tell us your immediate reaction to some of the documents that have come out already on the nomination of Judge Roberts?
REV. JESSE JACKSON: Well, first of all, he is touted as being a very brilliant man with a good mind, yet he forgot he was a member of the steering committee of the Federalist Society. That raises a question not of intelligence, but integrity. He was counseling Reagan on how to maneuver not supporting Mrs. King on supporting the King Center in Atlanta Georgia. His position on challenging women’s right to self-determination has been unconstitutional, is a very serious threat to the majority of our society. And now the idea of not supporting Voting Rights extension, which today President Bush has not put forth a Voting Rights extension. That’s why we’re going to have a major march in Atlanta, Georgia, August 6 on the 40th anniversary of the Voting Rights Act, because so far this administration will not commit to voter opposition nor voter enforcement. So, if he has that view of Section 2 of the Voting Rights Act and Section 5 of Voting Rights Act, he has a very, very serious case of a velvet glove over his very right wing iron fist.
JUAN GONZALEZ: Ralph Neas, also the documents apparently indicate that in the 1982 Supreme Court decision that overturned the State of Texas law that denied children who were in the state illegally, illegal immigrant children, from going to public schools, the Supreme Court overturned that, and apparently Judge Roberts criticized the Justice Department for failing to properly defend the State of Texas. Can you talk about that?
RALPH NEAS: Certainly an unconscionable decision. We are working with the Latino organizations across the country, as well as other civil rights organizations, and I know Jesse feels very strongly about this issue. It’s almost beyond comprehension that he could take such a position, just as it’s almost beyond comprehension that someone who said just after being nominated, that “I get a lump in my throat as I walk up the steps to the Supreme Court.” This same person goes to the right of Ted Olson and says that Congress has the right under the Constitution to strip the Supreme Court of jurisdiction over civil rights issues, over school prayer and over abortion rights. This man, if these reports are true, has little respect for the rule of law, little respect for the Congress, and little respect for the Supreme Court.
REV. JESSE JACKSON: Well, one, also, the right wing is against the Supreme Court until they take it over. They are for the Supreme Court if it rules on the 18th of December, and the blacks have no right to [inaudible]. They are for it if it supports 1896, Plessy v. Ferguson. They are against it if it supports the Supreme Court decision–I mean, they believe in states’ rights until it’s time to intervene in Florida, of which Roberts was a part in 2000. So, they — it’s really a kind of power grab and they have crafted him out as this clean slate, clean cut guy with no agenda. He is at least as dangerous as Bork was.
AMY GOODMAN: : Looking at an A.P. piece, you know, these articles are coming out as these thousands of documents have been released, so the White House says they’re not going to release any when he was — any more under Kenneth Starr, when he was Deputy Solicitor General in the first Bush administration. But it says — and this refers to Reverend Jesse Jackson talking about the 1965 Voting Rights Act, “Congress was considering an extension of the 1965 Voting Rights Act against the backdrop of the Supreme Court ruling that held proof of intent was needed to demonstrate someone’s rights had been violated.” Following up on Juan’s point, “House democrats sought legislation to change so election results would be sufficient. In a draft opinion article he sent to a county commissioner in San Antonio, Roberts wrote, `The proposal would not simply extend the existing and effective Voting Rights Act, but would dramatically change it. It’s not broken, so there’s no need to fix it.’” In other documents, Roberts, then working in the White House, wrote that legislation designed to overturn a different Supreme Court ruling would radically expand the civil rights laws to areas never before considered covered. He recommended against it. In a third, he wrote the administration could go slowly on housing legislation without fearing political damage. Ralph Neas, first your response.
RALPH NEAS: Number one, with respect to his tenure in the Solicitor General’s office as the top political deputy, there are many precedents that support giving up such documents. Bork had to give up his documents when he was up in 1987 for the Supreme Court. Rehnquist had to give up documents when he was up for Chief Justice in 1986. There are many, many democratic and republican precedents. With respect to the Voting Rights Act, Jesse Jackson and I worked together many times, but especially in 1981 and 1982. The House of Representatives by a vote of 389-24 rejected the opinions of John Roberts; the House by–the Senate by a vote of 85-8.
By the way, in 1985, the Senate Judiciary Committee, which was controlled by the Republicans, rejected the nomination of William Bradford Reynolds to be Associate Attorney General, because he was defying the civil rights laws of the country as passed by Congress and interpreted by the Supreme Court. John Roberts appears to have been the pardoner of William Bradford Reynolds during this time. I think the Senate should go back to those hearings in 1985, and perhaps we have an analogy here as to how the Senate should treat the confirmation of John Roberts to a much, much higher post, Supreme Court of the United States.
REV. JESSE JACKSON: Let me hasten say that while they decry activists on the court, we who feel the pain and threat of this, must ourselves become reactivated. And August 6 is the 40th anniversary of the Voting Rights Act of 1965, and speaking of activism, when the Congressional Black Caucus met with President Bush, and Congressman Jackson asked him would he extend the Voting Rights Act with enforcement provisions, he said I don’t support this estatehood. That’s not the question. Do you support the 1965 Voting Rights Act with provisions of enforcement? He said, `I don’t know what you are talking about. When it gets to my desk, I will address it,’ which is the Roberts position of not supporting it in the first place. It is in light of that, I must say quickly, in Georgia, they’ve reduced voting access I.D. from 18 down to five. You can only use state-issued I.D. So if you vote–or if you are from Georgia Tech, you can use your I.D. to register. But if you are from Emory or Moorhouse you cannot. They’re private schools. My point is this kind of voter restriction, worker suppressing ideology is what Roberts typifies. That’s why on March 6, we will have a major march in Atlanta, Georgia, because we, the people, must take our case back to the street. We can’t just analyze. We must also act.
AMY GOODMAN: : This is August 6?
REV. JESSE JACKSON: August the 6th, which is a Saturday. We`ll gather at 8:00 a.m. in Atlanta, Georgia. And there will be a major march. I might add that Stevie Wonder and Willie Nelson and Roberta Flack and Darius Brooks, but the entire Congressional Black Caucus and Latino Caucus and LULAC and MALDEF and Council of LaRaza, and NAA, and Urban League and SCLC. Nancy Pelosi will be there. The AFL-CIO, both John Sweeney and Andy Stern will be there, because Sweeney now says that voter rights denial is — and worker suppression is a big deal. We cannot take it lightly nor academically. So I want those who hear today may hit us on our website at www.RainbowPush.org or call on our Atlanta offices [inaudible].
AMY GOODMAN: : Reverend Jackson, we’re going to ask you to stay with us. We’re going to go to break right now, but I did want to ask Ralph Neas a last question, which is: How are you organizing? They’re talk about the hearing being a month after the march that Reverend Jackson is talking about, the hearing, the nomination hearing being September 6. How are you organizing at People for the American Way?
RALPH NEAS: Right now, we are trying to make sure those hearings are at a time when they’re — after they’re sufficient, ample opportunity for the Senate Judiciary Committee members to go through these documents. The administration is slow walking if not stonewalling right now. So, it looks like the hearings will be first week of September. But there may be more time required. With respect to People For, we have contacted all of our 750,000 members and activists across the country. We’re doing internet organizing, where our–in coalition in 20 states, the key 20 states, with moderate and conservative Republicans and Democrats. We’re doing pay TV, radio and print media starting this weekend. We’re working very closely with 125 organizations nationally and many more locally and regionally, asking the senators not to make a commitment until after the hearings. Make sure all of the documents are there for the American people, and make sure that the senators take their advise and could be sent responsibilities seriously.
AMY GOODMAN: : The Reverend Jesse Jackson and Ralph Neas of People for the American Way speaking on Democracy Now! in late July.
As we reported previously, Roberts was part of a three-judge panel that handed President Bush an important victory the week before he announced Roberts’ nomination to the bench. The appeals court ruled in the Hamdan V. Rumsfeld case 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.
New details eventually emerged concerning the timing of Roberts’ interviews for the Supreme Court post with senior Bush administration officials which called into question his impartiality in the Hamdan case. Roberts’ answers to a Senate questionnaire revealed that he met with Attorney General Alberto Gonzales six days before hearing oral arguments. The Hamdan case was argued on behalf of the administration by a top Gonzales deputy, Assistant Attorney General Peter Kiesler.
In addition to Gonzales, he met with Vice President Dick Cheney, the vice president’s chief of staff Lewis “Scooter” Libby, White House chief of staff, Andrew Card, Bush’s top political strategist, Karl Rove and White House legal council Harriet Miers. And, on the day the ruling was issued in favor of the administration, Bush himself conducted the final job interview with Roberts.
Two members of the Senate Judiciary Committee–Democrats Chuck Schumer of New York and Russ Feingold of Wisconsin–have since called on Roberts to explain before his confirmation hearings tomorrow why he continued to judge the suit as he was being interviewed to be a justice.
On August 18th, Democracy Now co-host Juan Gonzalez and I spoke with Georgetown University Law Professor, David Luban. He co-wrote an article for the online magazine, Slate , entitled “Improper Advances: Talking Dream Jobs with the Judge Out of Court.” We also spoke with Michael Ratner, President of the Center for Constitutional Rights. David Luban began by talking about the chronology of events of Roberts’ meetings.
DAVID LUBAN: Well, he knew that he was on the three-judge panel as early as last December. The case was argued, the oral argument was on April 7. Six days before that, as Juan mentioned, he had an interview with Attorney General Gonzales. And then while the case was being deliberated on, there’s a gap between April 7, when the oral argument took place, and July 15, when the court issued the decision. He had numerous other interviews for the Supreme Court judgeship. Now, that’s the period of time in which he is deliberating and presumably discussing with the other judges on the panel what the ruling should be in the case.
One of the important things about it, the three-judge panel, the case raised a number of different issues. They were unanimous on most of the issues. There was just one really crucial issue, though, in which they split two-to-one, with judge Roberts among the two. So, if he had recused himself from the case, then that issue would have been a one-to-one issue, and it wouldn’t have been settled, and that’s the issue about whether the Geneva Conventions give al Qaeda captives any rights at all. So, now it is decided that, on the basis of this case, that Geneva doesn’t give any rights at all, including the rights against cruel and humiliating and degrading treatment, along with the rights to a fair trial that Mr. Hamdan was litigating about. So, this is an important issue that Judge Roberts’ vote really swung.
JUAN GONZALEZ: But, David Luban, some legal experts say, number one, the discussions occurred before there was even a vacancy on the court. Sandra Day O’Connor did not announce her retirement until much later on. And the–and are federal judges to not have these kinds of discussions when — for the possibility of promotions within the federal judiciary while they’re holding — while they’re handling cases, especially in the D.C. Circuit, where much of the caseload is about the federal government.
DAVID LUBAN: Yeah. That’s a fair question, but I don’t think the chronology quite bears that out. Remember that Justice O’Connor’s retirement came as a surprise, but what wasn’t a surprise was that there was very likely going to be an opening on the court, and that’s because the Chief Justice developed thyroid cancer and it was unclear whether he was going to resign or not. Now, as early as February 22nd of 2005, the New York Times mentioned that Roberts was a prominent possible successor to Chief Justice Rehnquist. So, at least from February on-that’s a couple of months before the Hamdan case is argued-it’s already being reported that there’s very likely going to be an opening on the Supreme Court and that Judge Roberts is a candidate for the opening.
Now, one of the other things that’s important: You said correctly the case is called Hamdan v. Rumsfeld, but President Bush was himself a defendant in the case along with Rumsfeld. That’s because the President personally signed the finding that there was reason to think that Mr. Hamdan was a terrorist. So, here you don’t just have a case of a lawsuit against the government. You know, the government could be anything. It could be any of thousands of offices. This is a case against the President, the President personally, among other defendants; and the people who are conducting the interviews with Judge Roberts while this case is going on, are the President’s very top aides.
AMY GOODMAN: : David Luban is with us, Georgetown University law professor who co-wrote a piece in — on Slate, the online magazine. Michael Ratner, you’re with the organization Center for Constitutional Rights that is representing the man who brought the case before the Supreme Court, Salim Ahmed Hamdan, in Guantanamo. Your response.
MICHAEL RATNER: Well, to be more accurate, Amy, we represent many Guantanamo detainees, and the issue we represent them on, in many cases, are the application of the Geneva Conventions. Hamdan was actually represented by one of David’s colleagues at Georgetown, Neal Katyal, who actually argued the case in the D.C. Circuit.
I mean, my reaction is just with utter amazement, to be honest. I mean, here you have on April 1, a week before the argument, you have Roberts meeting with Gonzales, Gonzales the Attorney General who was the architect of the entire policy that the Geneva Conventions should not apply to the people in Guantanamo, that they should use military commissions, and he’s meeting with this guy at the same time that he is sitting on a case that’s going to determine whether or not the Geneva Conventions apply. So, at a minimum, as David’s article clearly says on Slate, that his impartiality might reasonably have been questioned — that is, Judge Roberts — and he should have disqualified himself. There’s not any issue about it.
But I would go further. It reminds me of a case when Ellsberg, the man who revealed the Pentagon Papers, was on trial for espionage, and during the trial President Nixon, briefly, but other people in his office, Ehrlichman and others, meet with the trial judge to offer him to be the head of the F.B.I. Well, the outcry in the community was huge about that when it was discovered, and it wasn’t just looked at as, `Well, he might — His impartiality might reasonably be questioned,’ but it was looked at as essentially the offering of a bribe to the President–to the judge–the offering of a bribe by offering him a head of the F.B.I. And that is — was an impeachment offense, really, and it was one of the offenses listed in the impeachment.
So, this goes, I think, way beyond the question of impartiality be questioned. This looks really bad. This was the central policy of this administration, which the Center has been challenging since day one: the non-application of Geneva Conventions to the people in Guantanamo. So, I–and the fact that so little has been made out of it so far. There was David’s Slate article; there was a piece in the Washington Post that in my view, while it exposed some of it, was very mealy-mouthed; and almost nothing today. I can’t understand it, actually.
AMY GOODMAN: : I wanted to ask you about this other development, just your informed comments on it. The Washington Post, reporting about the documents missing. The scandal involving two Bush administration lawyers going to the Reagan Library to look at documents, among them on affirmative action and John Roberts’ stance during the Reagan administration. They leave, the documents go missing. What is your response?
MICHAEL RATNER: Well, my response is it’s obviously very, very suspicious. I mean, they were–they are releasing 38,000 pages of documents in the next day or two that will be very important, but they’re holding back many. And the question is: What did these documents say, and why are they being — in my view, why were they all of a sudden, these documents, suppressed or lost? It sounds very, very suspicious to me; but, you know, when you look at the chicanery that’s going on in this administration, even on just this appointment, such as happened with this — meetings with Gonzales and even the President at some point, I would put nothing short of what this administration is willing to do to get this confirmation in. So, my suspicions are very high that these documents were intentionally, (quote), “lost.”
AMY GOODMAN: : Well, I want to thank you, Michael Ratner, President of the Center for Constitutional Rights, for joining us, and David Luban, Georgetown University Law Professor who co-wrote a piece for Slate called, “Improper Advances: Talking Dream Jobs with the Judge Out of Court.”
AMY GOODMAN: : Michael Ratner, president of the Center for Constitutional Rights and David Luban, Georgetown University Law Professor speaking on Democracy Now August 18th. Since then, Democrats on the judiciary committee have said they plan to question Roberts about the Justice Department memo that critics say laid the legal groundwork for torture at Guantanamo Bay and Abu Ghraib. Patrick Leahy of Vermont–the ranking Democrat on the committee–said he gave Roberts a copy of the so- called “Bybee memo” so he would be prepared for questions at his confirmation hearings.
Meanwhile, the White House is still refusing to release all of the existing documents relating to Roberts. Democracy Now! will cover the Senate hearings throughout the week.