Now that John G. Roberts Jr.'s confirmation by the Senate as the nation's 17th chief justice of the Supreme Court is virtually certain, the question looms: Has Roberts left himself enough wiggle room to vote either way on abortion rights, the most contentious legal question of our times?
About the only thing certain from Roberts' testimony before the Senate Judiciary Committee is that one side in the debate will be sorely disappointed.
Whatever light the circumspect, astute, and, at times, perhaps deliberately mix-signaling Roberts may have shed on his judicial philosophy, his answers—much like his entire legal career to this point—are of little help in gauging how he will rule on specific cases, particularly the validity of the 32-year-old Roe vs. Wade decision that made abortion a constitutional right.
The only thing certain from Roberts’ testimony before the Senate Judiciary Committee is that one side in the debate will be sorely disappointed.
That's the consensus of legal experts who strongly oppose abortion and the Roe ruling, as well as some leading pro-life activists.
However, the personal reactions of legal experts and activists interviewed by GodSpy to Roberts' ambiguous testimony were mixed.
Most of those interviewed felt that Roberts' refusal to tip his hand about future cases displayed appropriate judicial temperament, while being wholly consistent with the close-to-the-vest performances of past court nominees from both ends of the philosophical spectrum.
They say there were enough encouraging signs from his testimony to expect—if not be completely sure—that Roberts would vote the right way on abortion.
"I don't know that [how he would vote on Roe], but I'm prepared to live with it because he has expressed the proper jurisprudence one should express as a Supreme Court justice," said Ave Maria School of Law Dean Bernard Dobranski, a staunch opponent of Roe. "I would be very skeptical of a judge who would say, 'This is how I'm going to vote.'"
But some interviewed were indeed concerned about the maneuverability Roberts appeared to leave himself on abortion. They are also dismayed by President Bush's failure to nominate someone with a clear legal track record against abortion, expressing a general sense of frustration with Republicans on the subject.
One of those is Notre Dame Law School Professor Charles E. Rice, a leading legal scholar on life issues. "Republicans have the presidency, have Congress, have most of the governorships. If Republicans aren't going to fight for this stuff now, when are they going to fight?" he told GodSpy.
Rice said people he knows who "know (Roberts) well"—and who are strongly in the right-to-life camp—have little doubt he would support that position on the Supreme Court. "But there are very few indications from the record," Rice said. "So we just hope for the best.
Roberts’ lack of a definite record on abortion-related cases has made for some weird politics during the confirmation process.
"I don't think you can get a clear picture of what this guy's going to be like" from his testimony or other parts of his record, the law professor said. "People who know him say he's going to be really good, but he could be another Anthony Kennedy"—a reference to the Republican-nominated Supreme Court justice who has engendered conservative disdain with his vote to sustain the basic holding of Roe and for other rulings that have tended to the liberal side.
The law professor said that syndicated columnist Ann Coulter had a "good point" when she observed recently that "stealth candidates" like Roberts usually don't bode well for conservatives.
Asked whether Roberts had left himself enough "wiggle room" to go either way on abortion, Rice agreed and said: "We just hope the next nominee has a clearer record."
Roberts' lack of a definite record on abortion-related cases—he has dealt with few such cases as a judge on the Court of Appeals for the District of Columbia—combined with his ambiguous testimony, made for some weird political maneuvering during the confirmation process.
Despite the uncertainties surrounding Roberts' views, just about every pro-choicer—and most pro-lifers—staked out strong positions against and for the nominee.
Of course, it's expected that pro-choicers would uniformly oppose any nominee a Republican president would put forward, short of one who expressly favored Roe. Abortion-rights supporters have a vested interest in keeping the pressure on any Republican nominee, even if they harbor some hope that he may, secretly, rule for their side. And, clearly, they want to raise enough of a fuss to influence future Bush judicial nominations, particularly because this president has at least one, and some say perhaps as many as three more, to make.
What was strange, however, was that Roberts, in his Judiciary committee testimony, won few kudos from pro-choicers for agreeing with three legal principles that are generally (although not definitively) considered pro-Roe.
First, Roberts embraced stare decisis—the legal principle that Supreme Court precedents, such as Roe, should be respected unless an exceptional case can be made for overturning them.
Second, Roberts agreed that a right to privacy can be found in the Constitution—including the 14th Amendment—which was the basis for the Roe decision.
And third, he agreed with Justice Sandra Day O'Connor's position that a justice should consider "real-world impact" in deciding cases—which could lead him to conclude, as O'Connor did, that preventing a return to "back-alley" abortions, and not disrupting the lives of women who have come to rely on the availability of abortion, are essential reasons for upholding Roe.
But if pro-choicers are maintaining a unified public front about Roberts, the same can't be said of pro-lifers. While many pro-lifers, especially those with strong ties to the Republican party, have been almost fawning in their praise of Roberts, other pro-lifers have been distrustful.
The Catholic conservative contingent embracing Roberts, including Austin Ruse, president of the Culture of Life Foundation, a pro-life think tank, and Leonard Leo, head of Catholic outreach for the Republican Party, have publicly expressed satisfaction with Roberts' performance before the Judiciary Committee. They seemingly have few doubts that Roberts will do justice to the pro-life cause.
But this confidence can't be seen in all pro-lifers. Michael Mueller, executive director of Human Life International, said he was disappointed in Roberts' performance and thus cannot say that he supports him.
"He had an opportunity to stand up and be counted on national TV, and he hasn't done that," Mueller said. "He could just as easily be a strong pro-death-er as a strong pro-lifer. We just don't know."
He cautioned that he was speaking only for himself, and that HLI's position has remained the same following Roberts' testimony (though the organization's position, as noted on its Web site, is similar to Mueller's; HLI's official statement says it is reserving support for Roberts "until we actually see some good fruits" on life issues). Mueller agreed that it was odd that so many lobbyists on either side of the debate are acting as though they're certain of Roberts' legal positions on abortion.
Roberts was quoted as saying that Roe is "settled as a precedent of the court, entitled to respect under principles of ‘stare decisis.’”
"I don't know why people in the pro-life or pro-death camps are standing up so strongly one way or the other," he said.
"I'm waiting for him to give some verbal indication that, at the very least, he is a strict constitutionalist ... At the very least, I'd like to see him say, 'I'm against Roe vs. Wade,'" Mueller said.
But law school dean Dobranski rejects the notion that Roberts should be any more specific about his views.
He told GodSpy that it is essential for a judge to approach all cases with an open mind. Having an initial gut reaction to a case is quite normal, he said; announcing in advance how one would rule is quite another. "Once somebody does that you lose faith in the judicial process and judicial integrity," Dobranski said.
But, he said, he has great faith that, once on the court, Roberts will see the Roe decision for the legal "abomination" that it is. "It has never been well decided or well settled ... This seems a paradigm of a case that should be overruled, like Plessy vs. Ferguson (the 1896 decision that allowed "separate but equal" racial segregation) or the Dred Scott decision (that, in 1857, denied slaves the right to sue in federal courts for their freedom). It's a moral embarrassment to the country that it should remain on the books," Dobranski said.
Dobranski said his own view of the proper judicial philosophy is closest to Justice Antonin Scalia—a self-described "originalist" committed to the "plain meaning" interpretation of the Constitution wherever possible.
The dean said he believes Roberts has demonstrated that, in deciding cases, he would "start" with the text of relevant statutes and parts of the Constitution at issue, only deviating from those if there were appropriate reasons to do so. Dobranski said he expects Roberts' philosophy to be closer to the man he would replace—the late Chief Justice William Rehnquist, one of the original dissenters in Roe and for whom Roberts clerked as a young man—than to Scalia or Justice Clarence Thomas.
"I do think this is a man who will try to work for a consensus (on the court), but I don't think it would compromise his view" of cases, Dobranski said.
Although Judiciary Committee Democrats carried on at great length about Roberts' refusal to answer specific questions—Sen. Charles Schumer of New York referred to the "cone of silence" surrounding him—he certainly was no more reticent than liberal nominees who have come before the panel in recent times, particularly Justice Ruth Bader Ginsburg, who won confirmation with little Republican opposition despite an unquestionably liberal track record.
"He has been more forthcoming than either she was or (Justice Stephen) Breyer was," Dobranski said.
Certainly Roberts' response to abortion-related issues—including the weight of precedents and whether a right to privacy exists in the Constitution—where more nuanced than the mainstream media made it seem. The New York Times, for example, reported rather breathlessly that, on the second day of the hearing, Roberts "paid full tribute to the weight of 32 years of precedent behind Roe v. Wade." The paper quoted Roberts as saying that Roe is "settled as a precedent of the court, entitled to respect under principles of stare decisis," and that, in general, it was a "jolt to the legal system" when a precedent was overturned.
Is Roberts still the same devoted Catholic who once concluded that support for a memorial service for aborted fetuses in California was “an entirely appropriate means of calling attention to the abortion tragedy”?
The paper continued, "Moreover, (Roberts) noted, Roe had been explicitly reaffirmed by the court in 1992, in Planned Parenthood v. Casey, and thus had additional protection as precedent. And, at several points during the day, the nominee expressed his support for a constitutional right to privacy, which was the basis for Roe."
The Times did mention that Roberts stopped short of endorsing Roe, but the paper glossed over Roberts' statement that courts sometimes decide they can indeed reverse a precedent.
If this was all you read, you might conclude that Roberts seems to have a pretty strong inclination to uphold Roe. Well, maybe. But there was more to the story that the Times didn't report. As Steven Ertelt of LifeNews and other observers pointed out, Roberts also laid out a framework for overturning bad precedents. He told Sen. Arlen Specter, R-Pa., the Judiciary Committee chairman, that new facts and information could provide a basis for the high court overturning a decision like Roe.
"Whether or not particular precedents have proven to be unworkable is another consideration on the other side—whether the doctrinal bases of a decision had been eroded by subsequent developments," Roberts said.
"For example, if you have a case in which there are three precedents that lead and support that result and, in the intervening period, two of them have been overruled, that may be a basis for reconsidering the prior precedent."
And Roberts actually said that providing a "jolt" to the court—by overturning a precedent—may be necessary when a bad decision has stood for too long, LifeNews reported.
Nor was the Times the only media outlet that created the impression that Roberts is pro-Roe. Kim Gandy, president of the pro-abortion-rights National Organization of Women, also faulted the Associated Press, in an interview with DemocracyNow, for giving "people the idea that he had endorsed Roe or had done so in so many words."
That Roberts' views are more complex than some have made them out to be is, of course, a predictable development in the political process, where how a nominee or candidate is portrayed is often more a product of wishful thinking or an attempt at manipulation than an accurate depiction of reality. The Roberts situation is not unique in that sense. And Roberts—who by some accounts has been preparing for a Supreme Court nomination since he was a young man—certainly must have known what he was doing when he seemed to feint toward opposite sides of the abortion debate in subtle ways; he left, in other words, just enough room for each side to think he might be one of theirs, yet still received praise from some quarters for his impartial judicial temperament. It was a masterful performance, no doubt, from a lawyer who admittedly takes pride in arguing either side of almost any case.
Roberts told Sen. Arlen Specter that new facts and information could provide a basis for the high court overturning a decision like Roe.
All the same, the public is left not knowing what to make of Roberts on specific issues. Is Roberts such a blank slate on life issues that he really could go either way, after years of legal craftsmanship that have deepened his respect for both sides in almost every court battle? Is he a man who may be more devoted to the process than to principles? Or, is he still essentially the same seemingly fixed-compass Roberts of his youth, who sees the law as a means to accomplish specific noble ends? The same devoted Catholic who once, as a young lawyer in the Reagan administration, concluded in a memo that administration support for a memorial service for aborted fetuses in California was "an entirely appropriate means of calling attention to the abortion tragedy"?
Most people's views evolve, of course, as they get older, and Roberts makes a solid case for the view that different roles require different approaches; a Supreme Court chief justice has a much different set of responsibilities than a staff attorney for the executive branch. But how Roberts pans out on the court poses an enormous risk for Republicans, who have used life and other social issues as the bait to siphon off critical support from otherwise-Democratic voters—including many Catholics who disagree with Bush on the war and on economic issues. There's no doubt the frail majority that gave the Republicans the White House and control of Congress could dissolve if these voters feel betrayed by Republicans on Supreme Court nominees. Bush and his chief strategist, Karl Rove, truly may not know Roberts' position on Roe, but they should be concerned all the same. If Roberts does indeed turn out to be another O'Connor, Kennedy, or David Souter, Catholics and other pro-lifers may decide they've had enough of being taken for granted by Republicans.
At the same time, if Roberts ends up being like Scalia, Thomas, or Rehnquist on abortion, then Democrats may feel they're the ones who've been betrayed—by Roberts' tap dance at the confirmation hearings—and do everything in their power to block all of Bush's next appointees (which may, of course, happen anyway)—another reason Bush and Rove may have resisted picking a hard-liner on abortion for their first attempt at molding a new court.
So, really, what everyone is left with is a big, fat stay tuned, with perhaps the most logical position taken by some in the pro-life movement like David Reardon, ph.D., founder of the Eliot Institute and an expert on post-abortion trauma.
"I'm still left with being reasonably optimistic, but if Roberts turns out to be an O'Connor," Reardon told GodSpy, "I can't say I'll be surprised."