By MICHAEL DOYLE AND MARGARET TALEV
September 06, 2005
Now he must speak for himself, as President Bush's nominee to succeed the late Chief Justice William Rehnquist on the Supreme Court.
Roberts' paper trail precedes him. From his earliest Justice Department missives as a young aide out of Harvard Law School, through his latest opinions as a seasoned federal appellate court judge, Roberts has given senators plenty to work with. More than 60,000 pages of documents have been released by the National Archives and presidential libraries.
The documents reveal a strong work ethic, a powerful intellect, a sometimes wry sensibility and a conservative perspective that nonetheless appreciates alternative views. They do not, however, capture the entire man.
In his upcoming Senate Judiciary Committee hearings, these will be challenges for senators to figure out: Does the 50-year-old judge still hold to views he articulated as a 26-year-old special assistant? Has his thinking shifted, or simply been polished and self-edited? Can his own ideology be distinguished from the views of clients he zealously represented?
"With life expectancy these days, he could be a Supreme Court justice ... for seven or eight or nine presidential terms," said Ralph Neas, president of People For the American Way, a liberal group that opposes Roberts' nomination. "That's why we have to take these nominees so seriously - because they're going to have a dramatic impact on the daily lives of all of us, all Americans and our children and our grandchildren."
Roberts was originally selected as the successor to retiring Associate Justice Sandra Day O'Connor. Democrats said they would hold Roberts to a higher standard after Bush announced Monday that he was nominating the judge to replace Rehnquist. The senatorial questions and answers should flesh out Roberts' thinking on key topics including:
- Affirmative action: Roberts has sounded skeptical of the merits. Working for the Justice Department during the Reagan administration, Roberts wrote memos arguing federal affirmative action policies unfounded, even "offensive." While deputy solicitor general to President George H.W. Bush, Roberts argued, in a 1990 case, against applying affirmative action to issuing broadcast licenses.
- Abortion: Roberts has worked to restrict it. "(We) continue to believe that Roe was wrongly decided and should be overruled," a Sept. 7, 1990, legal brief prepared by Roberts' office declared. At the time, Roberts was deputy solicitor general and representing the first Bush administration in a case blocking family planning programs from giving abortion-related counseling. In his 2003 confirmation hearings, however, Roberts said he considered Roe v. Wade to be "the settled law of the land."
- Congressional powers: Roberts has sought to reel in the congressional powers that began expanding in the New Deal. Writing as an appellate court judge in the 2003 case called Rancho Viejo LLC v. Norton, Roberts suggested some skepticism about whether Congress could use the Endangered Species Act to protect a toad that only lived in one state. Such a law might "effectually obliterate" the limits imposed on congressional power by the Constitution's Commerce Clause, Roberts said.
- Presidential powers: Roberts supports a powerful executive branch, particularly in matters of war. As an appellate judge in the 2005 case Hamdan v. Rumsfeld, Roberts joined in accepting White House arguments that the Geneva Conventions did not apply to Al Qaeda terrorists. In the 2004 case Acree v. Republic of Iraq, Roberts agreed that a presidential order could block courts from considering the case of U.S. prisoners tortured by Iraq.
- Judicial activism. Roberts, like other conservatives, asserts a preference for self-restrained judges. In a June 15, 1982 memo he co-authored with Carolyn Kuhl - now a Los Angeles Superior Court judge - Roberts implicitly criticized the Supreme Court decision in the important case called Plyer v. Doe. The court in Plyer ruled that states could not deny public school opportunities to illegal immigrant children. "This is a case in which our supposed litigation program to encourage judicial restraint did not get off the ground, and should have," Roberts and Kuhl wrote.
Roberts' supporters say he is conservative but not an ideologue, and that what he wrote while employed by Republican administrations is not evidence of how he would rule in cases that come before him.
"His role was as a lawyer for a president who had an agenda. And he was trying to assist that president or that attorney general in their agenda," said Dean Colson, a Miami lawyer who met Roberts when they clerked for then-Associate Justice Rehnquist in 1980.
The case of school prayer is illustrative, exemplifying Roberts' work ethic, his ability to appreciate countering arguments and his taste for the sardonic.
In the spring of 1985, while serving in the White House, Roberts reviewed proposals by congressional Republicans to strip the Supreme Court of jurisdiction over school prayer cases. The proposed legislation authored by North Carolina Republican Sen. Jesse Helms was a reaction to the Supreme Court striking down Alabama's mandatory one-minute of silence in public schools.
Roberts, following what he termed an "exhaustive review," determined that the Constitution granted Congress the power to narrow the court's jurisdiction. He also considered it a lousy idea and denounced it as "bad public policy."
The Reagan administration's Justice Department, though, took a different tack and averred that Congress lacked the constitutional authority to limit court jurisdiction. Politics may have driven this reasoning, as it sidestepped a direct policy confrontation with the Reagan administration's conservative allies.
Roberts was unconvinced. Nonetheless, when the issue arose again, he reasoned the White House should simply stick with the Justice Department's questionable constitutional argument.
"I think I would recommend that we adhere to the old misguided opinion and let sleeping dogs (an apt reference, given my view of the opinion) lie," Roberts wrote.
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