Who is ., really?
A Supreme Court nominee who isn't likely to burn us this time, say many social conservatives—including some Catholics leading the fight against abortion. A man whose appointment will honor the president's pledge to appoint justices in the mold of Antonin Scalia and Clarence Thomas and repay the political debt President Bush owes to pro-lifers, these Roberts supporters seem to suggest.
"This is what we voted for in November's election-a positive change on the Supreme Court," said , national director of Priests for Life, in an electronic "alert" to the troops minutes after Bush's July 19 nomination. Pavone's e-mail described Roberts as "highly qualified," with "proven legal abilities."
But leaders of other Catholic right-to-life organizations say they're not ready to celebrate just yet. While expressing "cautious optimism" about the devoutly Catholic Roberts—and while certainly having nothing negative to say about the man personally—there is still too much uncertainty to rest easy, they say.
Referring to the social conservatives solidly behind Roberts from the start, , president of , told GodSpy: "They're kind of presuming a whole lot, whereas I'm saying I'm going to wait and see. I hope he's a dyed-in-the-wool pro-lifer."
On some levels Roberts is exactly the type of person pro-lifers and social conservatives would want on the court.
But Euteneuer said he did not know that. (Pavone could not be reached for comment despite several attempts.)
"I'm not inclined to jump right on the bandwagon because a lot of tough questions need to be asked," agreed David B. Wright, director of program development for the .
In other words, there's a chance (albeit, however small) that Roberts may turn out to be more in the mold of justices David Souter, Anthony Kennedy, and the one he would replace, Sandra Day O'Connor—and become another in the line of Supreme Court nominees by Republican presidents who disappoint the pro-life movement and social conservatives in general.
Trying to make sense of the nomination, GodSpy reviewed available information about Roberts, including his limited number of rulings as a federal appeals judge and public statements, and analysis from legal experts and others who know him well.
The review was by no means exhaustive, but did point to the following conclusion: Roberts appears to be a strong believer in a philosophy of judicial restraint, which would make him more likely to side with social conservatives on issues like abortion, gay rights, religious expression, and affirmative action.
But there also seems to be enough wiggle room in Roberts' approach to the courts to allow him to part company with the solidly conservative opinions of Scalia and Thomas, if he so chose. This wiggle room comes from an analysis of his judicial rulings by legal experts, and statements by Roberts himself. In some cases the statements appear to contradict the views of social conservative supporters about him.
"I do not have an all-encompassing approach to constitutional interpretation; the appropriate approach depends to some degree on the specific provision at issue" Roberts wrote in response to a written question from the Senate Judiciary Committee during his 2003 confirmation to the federal appeals court for the District of Colombia. "Some provisions of the Constitution provide considerable guidance on how they should be construed; others are less precise.
'This is what we voted for in November’s election—a positive change on the Supreme Court,' said Father Frank Pavone, national director of Priests for Life.
"I would not hew to a particular 'school' of interpretation, but would follow the approach or approaches that seemed most suited in the particular case to correctly discerning the meaning of the provision at issue."
Statements like these are some of the reasons several pro-life leaders are not 100 percent comfortable with him.
It's possible such statements were Roberts' way of being politically astute—avoiding coming across as close-minded, while keeping his more controversial conservative opinions close to the vest. That possible explanation was raised by , founder of the Elliot Institute, and an expert on post-abortion trauma whose work has been used to try to overturn the 1973 Roe vs. Wade decision and to protect women from abusive abortion industry practices.
A savvy jurist like Roberts, who probably has prepared for a Supreme Court nomination for a long time, "can give answers that allow room for equivocation without revealing his heart," Reardon told GodSpy. He added that he could be counted as "reasonably optimistic" that Roberts would side with abortion opponents if confirmed, which appears likely. (Predictions are that Roberts will be approved by a comfortable margin in the Senate despite the usual sideshow from opponents on the left. That, of course, is barring the disclosure of any unlikely "smoking guns.")
If so, this may be a stroke of political genius on Bush's part—putting forth a nominee who appeals to the president's conservative base, but has such a limited paper trail that left-wing opponents can't muster enough ammunition against him. At a time when the mere suggestion that a nominee might vote to rescind the federally guaranteed right to an abortion has been known to cause apoplexy on the left, and even some Republican knees to buckle, the president may have found an unBorkable candidate.
"It could turn out to be a brilliant choice," Reardon agreed.
Maybe. But before they'll crown the choice as such, say the pro-life leaders in the skeptical camp, more information about Roberts must come from the hearings. While several say that Roberts will be too shrewd to answer questions about Roe and other rulings likely to come before the court (which should be no impediment to confirmation given that such dodging has become standard for appointees of all ideological stripes, such as Scalia, Thomas, Souter, and Ruth Bader Ginsburg), they said they do insist that he provide a straightforward description of his judicial philosophy.
"We need to hear whether this will be a man who will uphold the Constitution or will this be someone like David Souter and Sandra Day O'Connor who will find new rights in the Constitution," said Wright of the American Life League. "I think the kind of question that will be useful is to find out his view of the role of the judiciary and the role of the Constitution. Is it a dynamic document that should change with the will of the times?" That question was a reference to the judicial philosophy of liberal activists that has been used, among other things, to justify rulings in favor of abortion and gay rights.
But, Wright said, a big concern is that, when all is said and done, the public may still be in the dark. He said he expected that when Roberts takes his seat on the court in October following his likely confirmation "we will not know a whole lot more than we know today, and we will pray hopefully that the right thing gets done."
From a personal standpoint, there is little doubt about who John G. Roberts is: a standup guy. Humble, self-effacing, considerate, conservative in both politics and lifestyle, these are the descriptions most observers agree on, even those who don't share his politics. An unquestionably brilliant lawyer, yet a quiet, old-fashioned Midwesterner who could charm the socks off you with his intelligent sense of humor.
A man with a vibrant marriage, who shares a deep Catholic faith with his wife, Jane Sullivan Roberts, who is a respected leader in the fight against abortion. Mrs. Roberts, who is also a lawyer, has been a high-ranking member of and contributor of legal services to , a pro-life group that works largely on college campuses, whose focus is on how abortion hurts women.
There’s a chance, however small, that Roberts may turn out to be another in the line of Supreme Court nominees by Republican presidents who disappoint the pro-life movement.
On some levels, to be sure, Roberts is exactly the type of person pro-lifers and social conservatives would want on the court: former lawyer for Operation Rescue; author of a statement attached to a brief he co-authored as principal deputy solicitor general for the first Bush administration that argued that Roe had been wrongly decided; clerk for former Associate Justice (now Chief Justice) William Rehnquist—the godfather of modern Supreme Court conservatism and one of the original dissenters in Roe.
Yet, when the subject turns to his judicial philosophy, the picture we have of Roberts becomes a lot less clear. The White House and other members of the Roberts team—perhaps trying to keep the opposition off balance—were quick to point out that Roberts was merely acting as a lawyer for the first Bush administration when he wrote the anti-Roe statement, not expressing his own views. But does that mean his own views could be different? Adding to the confusion were Roberts' answers to the Judiciary Committee prior to his appeals court confirmation. Roberts told the committee that "nothing in my personal views" would prevent him from applying the Roe decision, which he called "the settled law of the land." But Roberts supporters have noted that his obligation to obey Supreme Court decisions as a lower-court judge would change with his elevation to the high court.
Don't read too much into these individual statements, social conservatives supporting Roberts seemed to say after his nomination to the high court. Indeed, some political heavyweights have been vouching for him for months; this includes no less a figure than Leonard Leo, head of Catholic outreach for the Republican Party.
Leo and Roberts have traveled together in legal and Catholic circles for nearly 15 years, according to a July 22 New York Times article. They've attended the opera together. When conservatives expressed doubts about Roberts, Leo said, "I would say, 'I know the man.'" The lobbying by Leo and another longtime Roberts associate, Jay Sekulow, chief counsel of an evangelical Protestant legal center founded by Pat Robertson, has come at the direction of the White House, which wanted to keep the religious right on the reservation behind a short list of potential nominees that included Roberts.
According to Leo, "there were certainly questions a year or two ago about whether John Roberts fit the president's standards (for a high court justice) as he set forth in his two campaigns"—someone in the mold of Scalia or Thomas—"but as we moved closer and closer to the period when a vacancy would occur people became much more educated and more comfortable with his background."
According to the Times, in addition to stressing their personal relationship with the nominee, Leo and Sekulow courted skeptics by pointing to these guideposts:
1. Roberts' respect for strict, or plain language, meanings of the Constitution and federal statutes, which has restrained the judge from trying to supplant the will of the Founders or the elected branches of government in rulings from the bench. (In its purest form, this judicial philosophy is known as "originalism," with Scalia and Thomas representing that view on the Supreme Court.) Such a philosophy is embraced by conservatives, who fault the high court for "creating" federally protected rights to abortion, gay lifestyles, and the use of racial preferences in governmental settings, while imposing undue restrictions on religious expression in public arenas.
2. Roberts' family and religious life. In addition to the impressive credentials of Jane Roberts, Leo noted the Robertses' close relationship with Msgr. Peter J. Vaghi of The Church of the Little Flower in Bethesda, Md., who is a well-known advocate of Catholic orthodoxy and opponent of abortion.
3. Roberts' supporters include two respected law professors who are well-known pro-life advocates: Robert George of Princeton University and Hadley Arkes of Amherst.
The sales effort paid off. Referring to the encouragement he derived from knowing more about Roberts as a person, Austin Ruse, president of the , a Catholic, pro-life think tank, told the Times, "For people like me who are reading the tea leaves, it is another marker that we can breathe easy."
'By temperament, he’s not a flame-thrower, not somebody you’d expect to willingly or readily overrule a precedent.'
Other social conservatives see little chance that Roberts would be another bitter disappointment from a Republican president. , founder of Focus on the Family, has been effusive in his praise for Roberts. "I don't think there is any evidence that he is going to be another Souter," Dobson said.
But that confidence is not universally shared, at least not at this point. "Quite frankly, the fruits of Judge Roberts' few recorded opinions on the life issues are mixed and a lot less hopeful for turning back the damage of Roe than any respectable pro-lifer should want," says a statement written by Father Euteneuer about the Roberts nomination on Human Life International's Web site.
"His wife has a much better track record of explicit pro-life activism than Judge Roberts, but last we heard President Bush has not nominated Mrs. Roberts to the bench. Is it possible that, given the chance, Roberts will make a difference in the fight for life? Yes, and if that is the case we will bless him as a pro-lifer in word and deed. Is it possible that he will turn into another David Souter—quite!—in which case he will bear the guilt of the murder of all the babies he might have saved by his one-ninth share in the mightiest deliberative body known to man.
"As front-lines activists who have experienced repeated dashed, naïve hopes for conscientious action by our 'pro-life' public figures, we of the HLI family will not 'entrust' ourselves or our hopes to Judge Roberts until we actually see some good fruits."
Euteneuer, in an interview with GodSpy, praised Roberts for his Catholic faith, but said that simply isn't enough reassurance for him. "Anthony Kennedy is a practicing Catholic, and he's disappointed. Lots of members of Congress claim to be practicing Catholics, and they're absolute abominations."
To try to get beyond speculation, GodSpy did review various aspects of Roberts' record and the analysis surrounding it. Among the findings:
Roberts' two years of published opinions on the Court of Appeals for the District of Columbia, considered the second most powerful in the land, do indicate a jurist loath to broad interpretations of statutory text where the plain meaning is obvious.
In a decision last year, as the New York Times noted, Roberts referred to the "cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more." In another case, he chided lawyers for not studying the plain language of a law. He referred to Felix Frankfurter's three basic rules of statutory interpretation: "(1) Read the statute; (2) read the statute; (3) read the statute!"
Richard H. Pildes, a law professor at New York University, compared Roberts approach to Scalia. "Like Scalia, he appears to be committed to a strong priority to the texts of statutes. And that might extend to the texts of the Constitution."
But other legal experts say the real Roberts is a lot more flexible than painted by his conservative supporters—with views in line with his 2003 comment to the Judiciary Committee that he does not have "an all-encompassing approach to constitutional interpretation."
George Washington University Law Professor Jeffrey Rosen, who is also legal affairs editor at The New Republic, is a fan of Roberts and painted a picture of him that essentially mirrored what Roberts wrote to the committee.
"As both an appellate lawyer and an appellate judge, he earned the reputation of a legal craftsman who didn't come to cases with preconceived grand theories, but took positions based on the arguments and legal materials in each case," Rosen wrote in a July 21 op-ed piece in the Times.
Rosen added that "based on his record throughout his career, he does not appear to be a rigid Constitutional 'originalist' in the tradition of Scalia and Thomas. These men believe that the Constitution should be strictly interpreted in light of its original understanding; they are willing (to different degrees) to overturn years of Supreme Court precedents in the name of constitutional fidelity.
When Roberts takes his seat on the court in October following his likely confirmation 'we will not know a whole lot more than we know today, and we will pray hopefully that the right thing gets done.'
"Having spent decades arguing before courts rather than sitting on them, John Roberts has never embraced one grand legal theory to the exclusion of all others. On the contrary, he has been trained to cast a wide net in order to reach a convincing result. Inflexible originalism is a theory embraced by academics and crusaders, not practicing lawyers who must persuade judges of different stripes."
Moreover, Rosen and others who know Roberts have said that he has delighted in litigating for both sides of the political spectrum; Roberts once told friends he could argue either side of any case. Rosen noted that Roberts has used his legal dexterity to argue for and against the constitutionality of affirmative action and expanding congressional powers. He also once helped convince the Supreme Court to restrict development rights to protect the environment at Lake Tahoe. These are hardly examples of someone always taking a doctrinaire conservative approach.
But that contradicts the image of Roberts painted by some of his supporters. "He doesn't argue just to argue," Sekulow, chief counsel of the legal center founded by Pat Robertson, told the Times. Sekulow made that comment to help make the point that he knows Roberts' heart was in the statement he wrote for the first Bush administration attacking the validity of Roe, and that he wasn't merely engaging in a lawyer's exercise.
Also, Rosen suggested the jury is still out on Roberts' views on the force of precedents—and offered no strong prediction on how the judge might come down on the question of dismantling those he may disagree with, such as Roe. But Rosen did provide what may be a helpful clue in this area. The professor noted that Roberts' judicial idol, Henry J. Friendly of the federal appeals court in New York, for whom Roberts clerked in 1979, "was famously cautious, a man devoted to incremental rather than radical legal change."—in other words, no flame-thrower when it came to overturning precedents.
Others who know Roberts well say he would follow in those footsteps.
"By temperament, he's not a flame-thrower, not somebody you'd expect to willingly or readily overrule a precedent," Paul Mogin, a roommate of Roberts at Harvard Law School who followed Roberts as Friendly's clerk and chose him as best man at his wedding, told the Times. "He's somebody who has respect for institutions. I think institutions have been important to him in his life, like Harvard, the Catholic Church, and the Supreme Court. He's not likely to be anybody to do anything too radical."
To be sure, trying to guess how Supreme Court nominees would behave can be a futile sport. With the exception of those who wear their judicial philosophies on their sleeves—such as Scalia, Thomas, and the liberal Ginsburg—surprises are virtually guaranteed. Dwight Eisenhower could have attested to that after watching the work of Chief Justice Earl Warren, whom Ike thought would, more or less, be a predictable conservative.
But the different takes on Roberts' legal views make only one thing certain at this point: Abortion opponents will either taste the sweet fruits of their two-time support for George W. Bush (support that came reluctantly from a good number of Catholics because of disagreements with him on the war, economy, and other issues), or they will gag from a disappointment so bitter that it could cause them never to trust a Republican presidential candidate again.