A conservative with few hard edges

from the July 21, 2005 edition - http://www.csmonitor.com/2005/0721/p01s01-uspo.html

By Warren Richey Staff writer of The Christian Science Monitor

In nominating federal appeals-court judge John Roberts to the US Supreme Court, President Bush is laying the groundwork for a significant rightward shift at the nation's highest court.
The move seeks to establish a presidential legacy that could influence one of America's most respected institutions decades after George W. Bush has left the White House.

The Bush administration's conservative push at the high court would have been more sweeping, however, if the president had named a judicial clone of Justice Antonin Scalia or Justice Clarence Thomas, as he had promised during his campaigns. Instead, Roberts's record suggests his voting pattern would be closer to that of Chief Justice William Rehnquist, a solid member of the court's conservative wing though not as doctrinaire as his two conservative colleagues.

But the replacement of centrist swing voter Justice Sandra Day O'Connor with someone likely to vote more consistently with the court's conservative bloc means that an entire range of 5-to-4 O'Connor precedents over the past two decades may soon be in jeopardy. They include abortion-rights restrictions - such as parental notification laws and bans on so-called "partial birth" abortions. Affirmative-action programs may also be at risk.

At the same time, Roberts appears to be a reliable vote in support of the high court's revival of states' rights. And last Friday, he was a member of the three-judge appeals-court panel in Washington, D.C., that upheld the president's wartime power to conduct terrorism tribunals at the Guantanamo Bay Naval Base.

In selecting Roberts, Mr. Bush dipped into the very top of the conservative legal elite in the United States. Few candidates at age 50 have a résumé that can match Roberts's. And although he is a white male, rather than a woman or member of a racial minority, his personal story is not without compelling touches.

His background

Captain of his high school football team, he worked summers in a steel mill to help pay his way through Harvard. After graduating magna cum laude at Harvard Law School, he clerked for federal appeals-court judge Henry Friendly. The following year, he clerked at the Supreme Court for Mr. Rehnquist, then an associate justice.

Roberts served in both the Reagan and the first Bush administrations - working for three years as principal deputy solicitor general, arguing the government's side in cases before the Supreme Court. In 1993, he left government service and became one of the nation's top appellate lawyers specializing in Supreme Court cases. Overall, he has argued 39 cases at the high court.

"He is a man of extraordinary accomplishment and ability. He has a good heart," Bush said of Roberts in his speech from the White House Tuesday night. "He has the qualities Americans expect in a judge: experience, wisdom, fairness, and civility."

Roberts, who has served on the US Court of Appeals for the District of Columbia Circuit since June 2003, said in brief remarks that he has "a profound appreciation for the role of the court in our constitutional democracy and a deep regard for the court as an institution."

He added, "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."

Roberts's sterling résumé and calm, friendly demeanor will make him a difficult target for liberal advocacy groups and certain Democratic senators who are poised for a confirmation battle.

Moments after the Roberts announcement, a barrage of critical statements were released questioning his position on various issues. People for the American Way distributed a 10-page report calling his record "disturbing." NARAL Pro-Choice America delivered three pages charging that Roberts is hostile to reproductive rights.

Much of the material is recycled from Roberts's first confirmation hearings to the D.C. Circuit in 2003. At that time, one of the most frequently repeated charges against him was that he helped author a legal brief filed by the Solicitor General's Office urging the Supreme Court to overturn the 1973 landmark abortion precedent, Roe v. Wade.

The government brief said in part: "We continue to believe that Roe was wrongly decided and should be overruled.... The court's conclusion in Roe that there is a fundamental right to an abortion ... finds no support in the text, structure, or history of the Constitution."

In written questions submitted to Roberts in 2003, Sen. Edward Kennedy (D) of Massachusetts asked if he still believes that Roe should be overturned.

Roberts responded that he was one of nine government lawyers working on the solicitor general's brief. "It was the position of the federal government at the time ... that Roe should be overruled," he said. "I do not believe it is proper to infer a lawyer's personal views from the position taken on behalf of a client."

Roberts added, "Roe is binding precedent and, if I were confirmed as a circuit judge, I would be bound to follow it. Nothing in my personal views would prevent me from doing so."

In the two years that he has served on the federal appeals court in Washington, Roberts has not been involved in a case dealing with the abortion issue. Most of his decisions deal with regulatory agencies and other government disputes. But some opinions offer insight into how he would behave as a justice.

Ruling on a French fry

One is the French fry case. It involved a 12-year-old girl who was arrested, searched, handcuffed, fingerprinted, and detained - all for eating a single french fry in a Washington, D.C., subway station.

At issue in the 2004 case were zero-tolerance policies that required transit-authority police to arrest and detain every minor caught violating the Metro system's no eating or drinking rule. In contrast, adults caught eating received only a citation that subjected them to a fine as high as $50. They were not detained.

The girl's mother sued the Metro system, charging that the two-tier policies that treat adults and minors differently violate the equal-protection mandate of the Fifth Amendment.

Roberts recognized the cruelty of the policies. "The child was frightened, embarrassed, and crying throughout the ordeal," Roberts wrote for the three-judge panel. "The district court described the policies that led to her arrest as 'foolish,' and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry."

Roberts didn't stop there. "The question before us, however, is not whether these policies were a bad idea, but whether they violated the ... Constitution."

The three-judge panel ruled that they did not. The girl and her mother lost their case and the opportunity to have her arrest record expunged. The report by People for the American Way criticizes Roberts's approach, saying he was "dismissive of the serious concerns raised by the use of police power in this case."

Roberts ruled that the juvenile detention policy was a "reasonable" effort by the city to ensure that parents of minors who violate Metro regulations are notified of the violations by having to pick up their children at the detention facility.

"We too may have thoughts on the wisdom of this policy choice - it is far from clear that the gains in certainty of notification are worth the youthful trauma and tears - but it is not our place to second-guess such legislative judgments," Roberts wrote.

To conservatives, the case illustrates the kind of judicial approach the president says he admires - that is, judges who strictly apply the Constitution and law rather than legislating from the bench.

But to liberals, the case is an example of a judge who adopted a narrow reading of the equal-protection guarantee - a guarantee designed to protect citizens, including teenage citizens, from unreasonable government actions.

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