Bush's nominee is a white middle-aged conservative candidate with a shallow record. But a record, nonetheless. Here is a synopsis of what we know so far. Some of this comes from the record of his service as Deputy Solicitor General under President George Bush I, and the rest as DC Court of Appeals judge.
As Deputy Solicitor General, he argued twice before the Supreme Court on an issue of reproductive freedom. In the first instance, the case involved the so-called "gag" rule that prohibited federally funded health clinics from discussing abortion. He argued
“[w]e continue to believe that Roe was wrongly decided and should be overruled . . . [T]he Court’s conclusion in Roe that there is a fundamental right to an abortion . . . find[s] no support in the text, structure, or history of the Constitution.” The Court ruled against him.
In another case, as Deputy Solicitor General, he argued on behalf of Operation Rescue defending them against charges that they discriminated against women by blocking women's health centers that provide abortions. The Court ruled in favor of the radical anti-choice group Operation rescue, but in reaction to this decision Congress passed the Freedom of Access to Clinic Entrances Act to protect women and health care providers from harassment and violence.
Religious Liberty & Separation of Church and State
As Deputy Solicitor General, he argued in favor of officially sponsored school prayer at graduation ceremonies. Roberts position maintained that students who did not want to pray could simply not attend their graduations. His brief stated: "A voluntary decision not to witness a civic acknowledgment of religion . . . cannot be considered a response to coercion.” He lost.
As Deputy Solicitor General, Roberts argued in favor of the congressional legislation which made flag burning illegal. Even right-wing Justice Scalia argued against Roberts in a 5-4 ruling by stating "punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”
Roberts broke with most of his conservative Republican US Court of Appeals judges in a decision that came down on the side of the government's position that it can enforce protection on private land of species listed in the Endangered Species Act. Roberts sided with the California developer in challenging the constitutionality of the Endangered Species Act. In so doing, he was identifying himself with radical, rightwing judges who work to undermine environmental protections in favor of development run amok.
Roberts showed a streak of meanness when he ruled against a mother whose 12-year old daughter had been arrested, shackled, taken away in a police vehicle, fingerprinted and jailed for three hours, after having been arrested on a DC subway car for eating a French Fry. You think I am kidding? It happened. Apparently, in a no-tolerance fit of pique by the DC police directed at people who eat and drink on the DC subway system, this 12-year old was targeted. The mother sued.
Roberts sided with the police, claiming that the law requiring harsher treatment of juveniles was rationally related to “the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.” In defense of his position to arrest and detain juveniles, he claimed that juveniles might give “an entirely fanciful [name] or, better yet, the name of the
miscreant who pushed them on the playground that morning,” and thus, their parents would never know about their misbehavior. After this incident, DC police changed their policy regarding the arrest of juveniles.
But in further commenting about the policy to arrest juveniles, Roberts wrote: “the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry.” What kind of guy is this?
Access to Justice
Despite strong precedent to the contrary, Roberts sided against a group of small publications that won a case against the Commodity Futures Trading Commission. On appeal by the CFTC, Roberts denied the winning plaintiffs an award of attorneys fees guaranteed by the Equal Access to Justice Act and, under which, a lower court had ruled they were directly deserving.
Protecting the Federal Treasury
In a case where he had an opportunity to protect the American people, as taxpayers, against corporate misdeeds, he chose to protect the corporation. In a decision that split hairs, under the False Claims Act, he sided with a company that provided defective railway cars to Amtrak. An Amtrak employee, acting somewhat as a whistle-blower, brought suit against the company and was denied a hearing (the case was dismissed) because, as Roberts claimed, Amtrak is not, as required under the Fales Claims Act, an official or employee of the United States. In so doing, Roberts has exempted from the Flase Claims Act a large number of quasi-governmental groups like Amtrak that receive billions of dollars of American taxpayer money.
These are, to say the least, troubling arguments and decisions. Roberts has a lot of questions he needs to answer. The Democrats must put his feet to the fire. Of course, Roberts can, as he did during his nomination process for the DC Court, simply refuse to answer, or answer in ways that really don't communicate anything. I worry that this guy will sneak onto the Court.
His record on the DC Court clearly shows me one thing: He has demonstrated a disdain and lack of support for the disadvantaged.
By nominating a man whose record is so thin, Bush is trying to slip one passed us. I think this guy is, at his core, a right-wing ideologue just itching to prove himself. And from his arguments and positions, he may be a nitwit in the mold of Clarence Thomas and George Bush, himself.
Thanks to People for the American Way's extensive research.