John G. Roberts Jr. is the wrong judge to replace Sandra Day O’Connor on the U.S. Supreme Court.
Some might argue that conclusion is premature. Roberts has been a federal appeals court judge for less than two years. While on the bench, he issued no significant rulings in the area of separation of church and state. Roberts has also been extraordinarily circumspect in his public utterances. Unlike some potential court nominees, he has not been in the habit of writing incendiary magazine articles or giving controversial speeches.
Yet unpleasant facts remain. The truth is, while we may not know much about Roberts, what we do know is very troubling.
Roberts has been a loyal foot soldier in the far right political revolution all of his adult life. His resume shows a predictable trajectory: He clerked for Chief Justice William H. Rehnquist and then worked in the Reagan and first George Bush White Houses. He spent the Clinton years in private practice and was then appointed to a federal judgeship by the second President Bush.
During his White House stints, Roberts showed a consistent hostility toward civil liberties and never failed to align with the far right. In 1991, he co-authored a legal brief asking the Supreme Court to toss out years of precedent governing church-state relations. This was no recommendation that the court take a baby step away from Jefferson’s church-state wall. It was a radical attempt to dramatically recast church-state relations.
Under the legal theory championed by Roberts, his boss Ken Starr and other attorneys in the Solicitor General’s Office, officially sponsored prayer at public school events, government display of the Ten Commandments and other mixes of religion and government would be declared acceptable practices because of their alleged historical nature.
The Supreme Court, led by Justice Anthony Kennedy (a Reagan appointee), rejected the argument, noting it would turn First Amendment jurisprudence on its head. That’s not surprising. What is surprising is that such an extreme argument was made at all.
Roberts has also championed court stripping in the past the radical notion that Congress can deny the federal courts the ability to hear certain types of cases, such as challenges to school prayer or anti-abortion laws. During the Reagan years, Roberts was a persistent booster of this idea, dropping it only when it became obvious no one was listening. Advocacy of court stripping remains with us today, currently championed by the Religious Right.
The justice Roberts hopes to replace, Sandra Day O’Connor, was a moderate who struck a middle course on church-state relations. Her opinions did not always please Americans United, but at the end of the day she voted to uphold the church-state wall more often than not. It’s true O’Connor voted in favor of vouchers for private religious schools, but she voted against government-sponsored school prayer and government display of the Ten Commandments and was a strong defender of religious free exercise. She was right more than she was wrong.
Will Roberts ever be right? Or is he just another ideologue in the mold of Antonin Scalia and Clarence Thomas? With so much at stake, it would be foolish to think Bush and his Religious Right allies have not thoroughly vetted Roberts for ideological purity.
At the very least, the Religious Right’s unbridled enthusiasm for Roberts is cause for concern. When Bush wanted to assure Religious Right allies that Roberts was the real deal, he tapped Jay Sekulow, an attorney for TV preacher Pat Robertson. No one wants to engage in guilt by association, but it’s reasonable to assume that Sekulow’s enthusiasm for Roberts is based on more than a hunch. What does he know that the rest of us don’t?
Americans deserve a Supreme Court justice who will respect our country’s great tradition of religious liberty undergirded by the separation of church and state. So far, nothing Roberts has said or done persuades us he is that justice.
The Senate should reject his nomination.
Friend Of Religious Freedom
The cause of separation of church and state lost a champion July 30 with the death of Ira Gissen.
Ira, 77, was the type of all-too-often unsung local activist who keeps Americans United running. A former director of the Anti-Defamation League for Virginia and North Carolina, Ira helped form AU’s Virginia Chapter and served it for many years as co-president. He also served on AU’s National Advisory Council.
Ira was the kind of person AU could count on to get things done locally. In the Norfolk/Virginia Beach area, he was AU’s “go-to guy,” always willing to attend a local hearing, do some research or host a meeting.
Ira placed a high premium on service to others. A veteran of the Korean War, he helped ensure the nation’s commitment to civil rights during the Kennedy, Johnson and Nixon administrations. He served as president of a board of education while living in New Jersey. He worked for national Jewish organizations and served on their boards. No matter where he was living, no matter what job he held, Ira Gissen made it clear that a commitment to social justice was his passion.
Ira leaves behind his wife of 49 years, Linda (also an AU activist), loving children and grandchildren and hundreds of well wishers as well as a powerful legacy in defense of religious freedom.