Confirmed Conservative

Despite Concern Over Bush Nominee’s Record On Civil Liberties, Senate Approves John G. Roberts As Chief Justice

On the second day of Senate Judiciary Committee hearings on the nomination of John G. Roberts Jr. as the nation’s 17th chief justice, Sen. Dianne Feinstein (D-Calif.) sought to figure out Roberts’ understanding of church-state relations.

Feinstein noted that John F. Kennedy, during his 1960 run for president, was asked whether his Catholicism would interfere with his ability to serve all Americans.

“At the time,” Feinstein said, “[Ken­nedy] pledged to address the issues of conscience out of a focus on the national interests, not out of adherence to the dictates of one’s religion. And he even said, ‘I believe in an America where the separation of church and state is absolute.’ My question is: Do you?”

Roberts responded with a dodge, but he was cut off by Feinstein.

“You can’t answer my question yes or no?” she asked.

“Well, I don’t know what you mean by absolute separation of church and state,” Roberts replied. He then launched into a discussion of the Supreme Court’s two recent decisions on Ten Command­ments displays at government buildings.

The following morning’s headline in The New York Times declared, “Nomi­nee Is Profile in Caution.”

Roberts’ caution, however, by day three of his confirmation hearings proved tiring for several of the Judiciary Com­mit­tee’s members.

Sen. Joseph Biden (D-Del.), during his Sept. 14 questioning of Roberts, concluded, “Without any knowledge of your understanding of the law, because you will not share it with us, we are rolling the dice with you, Judge.”

Despite the consternation caused by Roberts’ smooth, but often elusive, performance, the Senate Judiciary Commit­tee less than a week later sent the nomination to the entire Senate, where on Sept. 26 a majority of senators took their chances and elevated Roberts to the post of chief justice of the United States.

 Before the 78-22 floor vote, a number of senators echoed the concerns about Roberts’ record raised in the committee hearings and by an array of civil rights and liberties groups opposed to the nomination.

The confirmation process for Roberts, who had served on the U.S. Court of Appeals for the District of Colum­bia for less than two years, commenced with a wrangle over government secrecy. Senate Democrats urged the Bush administration to release the documents the nominee produced during his tenure in the first Bush administration.

Sen. Charles E. Schumer (D-N.Y.) knocked the White House for its stubborn refusal to comply.

“We have seen maybe 10 percent of you,” Schumer told Roberts, “just the visible tip of the iceberg. And we all know that it is the ice beneath the surface that can sink the ship.”

After the first day of hearings, which entailed opening statements by the 18 members of committee and a seven-minute statement by Roberts, the judge spent two marathon days Sept. 13 and 14 weaving his way around a barrage of questions regarding the kind of justice he might prove to be.

While his cagey performance exasperated Democrats and public interest groups who opposed the nominee, Reli­gious Right lobbyists heaped praise on Roberts.

Jay Sekulow, chief attorney for TV preacher Pat Robertson’s Americans Center for Law and Justice issued a Sept. 13 appeal to his supporters criticizing Americans United for Separation of Church and State and other groups who opposed Roberts.

“We are distributing legal memorandums to the staff of Senate Judiciary Committee members – and will continue to work closely with them to ensure that John Roberts is swiftly confirmed as Chief Justice of the United States Supreme Court,” Sekulow said.

Sekulow, who was picked by the administration to solidify Religious Right backing for Roberts, was initially on the Republican committee members’ list of witnesses in favor of the nominee. At the last minute, however, Sekulow was replaced by Rabbi Dale Polakoff, president of the Rabbinical Council of Amer­ica, a group that promotes the ideas of politically conservative Orthodox rabbis.

Other Sekulow allies joined the chorus praising Roberts.

Janet M. LaRue, head of the ultra-conservative group, Con­cerned Woman for America, issued a statement at the start of the hearings calling Roberts the “quintessential fulfillment of what President Bush promised the American people he would seek in a Supreme Court Justice.”

During his 2000 and 2004 campaigns, Bush frequently stated his intent to put on the federal courts justices in the mold of Antonin Scalia and Clarence Thomas, who are the most anti-separationist members of the high court.

On Sept. 13, Andrea Lafferty, executive director of the Rev. Lou Sheldon’s Traditional Values Coalition, told C-SPAN that America “was excited about Roberts.”

The Family Research Council’s Senior Legal Fellow Cathy Cleaver Ruse lauded Roberts after his first day of testimony, saying he “showed the world why he has the makings of an exemplary Chief Justice of the Supreme Court.”

Roberts was initially nominated as an associate justice of the high court, intended to take the seat now held by Justice Sandra Day O’Connor. But late on Sept. 3, the public information officer of the Supreme Court announced that Chief Justice William H. Rehnquist had died at his home in Arlington, Va., from thyroid cancer.

On Sept. 5, Bush changed his plans. Instead of nominating Roberts for O’Connor’s seat, Bush said he was re-nominating Roberts to be chief justice. Rescheduled hearings got under way Sept. 12.

At the start of the Roberts hearings, an expanding group of civil rights, civil liberties and other public interest groups, including Americans United for Sepa­ration of Church and State, were urging the Senate to reject the nomination.

Several members of the Judiciary Committee were troubled by Roberts’ record and worked to get the nominee to explain his judicial philosophy in greater detail. But as The Times noted, Roberts expounded on that philosophy only in a “relatively abstract” manner.

In a very few cases, senators learned useful information. Sen. Richard Durbin (D-Ill.), for example, tried to draw out Roberts on the church-state issue. Roberts offered responses that only heightened the concerns of Americans United that the nominee harbored a cramped view of religious liberty.

During the exchange with Durbin, Roberts appeared to leave himself the option of siding with several current Supreme Court justices who are looking to overturn the “Lemon test,” a three-part judicial standard used since 1971 to determine when a government action violates the separation of church and state.

That test, which came from the high court’s Lemon v. Kurtzman decision, holds that government violates the First Amendment’s Establishment Clause if it acts with a religious purpose. The Con­stitution is also violated if the government action has the primary effect of promoting or inhibiting religion or if it creates an excessive government entanglement with religion.

Durbin, in his questioning of Roberts, noted “a debate within the court as to whether or not they will stand behind” the Lemon test. The Illinois senator reminded Roberts that when he was the deputy solicitor general in the first Bush administration, he filed two legal briefs arguing that the court should dump the test for a more lenient standard.

Roberts struggled with Durbin’s inquiry, but seemed to suggest the Lemon test may eventually have to be done away with.

“Well, the Lemon test is a survivor,” Roberts said. “There’s no other way to put it.”

He continued, “I think one of the justices recently explained, you know, it’s not so much how good the Lemon test is, it’s that nobody can agree on an alternative to take its place. And there may be something to that.”

Roberts also cited the high court’s Commandments rulings and their differing outcomes as “a disadvantage of the Lemon test,” because the test is “very sensitive to factual nuances.”

He added that the Supreme Court “has adhered through thick and thin to the Lemon test, probably because they can’t come up with anything better. But the results sometimes, I think, are a little difficult to comprehend.”

Not satisfied, Durbin pressed Roberts. “Are you reading” the First Amendment principle of church-state separation “from a narrow point of view, or from the traditional Lemon point of view?” he wanted to know.

Roberts responded by claiming that during his short stint on the federal appeals court he had not been confronted with a church-state case. He then sought to distance himself from the briefs he filed as deputy solicitor general, saying he was arguing on behalf of an administration that believed the Lemon test to be “too manipulable, not determinative, and in some senses, inconsistent with the understanding of the framers.

“So that was the position that we were advocating there,” Roberts said. “I haven’t expressed my personal views on the Establishment Clause in any context.”

Roberts, in an apparent effort to appease Democratic critics on the Judiciary Committee, stated that the First Amendment’s religious liberty clauses were intended to protect all religious minorities and nonbelievers from government intrusion or discrimination.

The New York Times reported that Democrats on the committee were “in­creasingly agitated over what they regarded as his repeated refusal to answer their questions.”

Sens. Schumer, Feinstein and Biden, among others, tried to figure out whether Roberts believes the Constitution provides a right to privacy that protects individuals from a host of government actions.

Pressed about the matter, Roberts finally agreed that a right to privacy exists in the Constitution, although he seemed to leave the door open for interpreting it in a narrow way.

“ I do, Senator,” Roberts said. “I think that the court’s expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another.”

The Bush administration refused to release many documents Roberts authored or signed off on while he was a part of the first Bush administration, despite repeated appeals by Democrats on the committee.

A Sept. 9 letter was sent to the administration urging it to immediately “release to the Senate documents reflecting Roberts’ decisions and views that were created during his tenure as the ‘political deputy’ in the Solicitor General’s office from 1989 to 1993.” Another letter was sent by 17 senators to the White House on Sept. 12.

The administration’s refusal to comply and Roberts’ record led to complaints from several Judiciary Committee members.

Sen. Edward M. Kennedy (D-Mass.) said the “central issue” of the hearings is whether the high court would “protect the rights that are indispensable to a modern, more competitive, more equal America.” Many of Roberts’ “past statements and writings,” he continued, “raise questions about his commitment to equal opportunity and the bipartisan remedies we have adopted in the past.”

Noting the administration’s stone­walling on many other Roberts’ documents, Kennedy said, “We can only wonder what they don’t want us to know.”

Other senators on the committee, especially on the Republican side, urged Roberts to say as little as possible. Indeed, Sen. John Cornyn (R-Texas) in his opening statement urged Roberts to be circumspect on questions regarding his judicial philosophy and how he might rule on the bench.

“Don’t take the bait,” Cornyn said.

Although Roberts’ confirmation was approved by the Senate, it was not due to the lack of high-profile opposition.

Even before Bush elevated Roberts’ nomination from justice to chief justice, opposition was mounting against the nominee.

An array of civil liberties and civil rights groups, after studying as many documents as could be attained from the Bush administration, determined that Roberts during his politically appointed positions in the Reagan and first Bush administrations proved a consistent supporter of a far-right agenda, calling for an erosion of church-state separation and for overturning Roe v. Wade and other rulings upholding a right to privacy.

In a Sept. 6 article, The Washington Post wrote that, “Documents released from his government service in the past few weeks revealed Roberts to be a strong conservative with a sharp pen opposed to many affirmative action programs, open to more religion in public arenas and deeply skeptical of what he called the ‘so-called right to privacy’ that undergirds abortion and other rights established by the Supreme Court.”

The New York Times in a Sept. 15 editorial stated, “Judge Roberts’ record, on the bench and off, puts him well to the right end of the ideological spectrum.”

On Aug. 29, Americans United released its report, “Religious Minorities At Risk,” detailing Roberts’ work to undo constitutional safeguards protecting religious liberty.

Urging every senator to read the report and vote against Roberts’ confirmation, Americans United Executive Director Barry W. Lynn said, in a press statement, “I understand why Jerry Falwell and Pat Robertson support Roberts’ confirmation. I don’t understand why anyone else would.”

The 19-page report drafted by AU Legal Director Ayesha Khan analyzed Roberts’ opposition to Supreme Court decisions barring organized prayer in the public schools, his support for religious symbols in the public schools and other public places, as well as government funding of religion. Moreover, the report noted that in the Reagan Justice Depart­ment, Roberts advocated the right of Congress to strip the federal courts of authority to hear cases involving school prayer, abortion, desegregation and other controversial issues.

AU’s report, for example, delved into Roberts’ work as the principal deputy solicitor general in former President George W.H. Bush’s administration, noting the briefs he helped craft arguing against the Lemon test. AU described the test in its report as a safeguard “against over-reaching by religious majorities.”

“The test has been used to strike down the indoctrination of public school students through the posting of the Ten Commandments in classrooms,” the report continued, “to prohibit the delivery of Christian prayer at high school football games, and to preclude government funding of the religious activities of anti-choice organizations.”

In a brief favoring school-sanctioned prayer at graduation ceremonies, Roberts argued that the Lemon test should be set aside for something called a “coercion test,” which would mean religious action by government would be constitutional as long as it did not literally coerce individuals to participate in any religion or religious exercise against their will.

 In addition, Roberts’ briefs argued that the separation of church and state should be interpreted today in the same way that it was understood at the time of its adoption in 1789.

AU’s report notes that under Robert’s arguments, which were rejected by the Supreme Court in Lee v. Weisman, “school officials would be permitted to deliver prayers not only at graduation ceremonies, but at other public school events and ceremonies at which attendance is not mandatory, such as sporting events and school assemblies.”

“Under this vision,” AU’s report continues, “Jewish and Muslim children would be forced to choose between forfeiting their right to full participation in the public schools or being bombarded with sectarian prayers at school ceremonies and events.”

The AU report also showed that during his time in the Reagan administration, Roberts supported a constitutional amendment allowing government-sanctioned prayer in public schools and laws stripping federal courts of the authority to hear cases involving school prayer, abortion, desegregation and other controversial issues.

Only days after AU issued its report, the organization joined a coalition called “No on Roberts,” announcing a nationwide campaign opposing the Roberts nomination to the Supreme Court. The coalition was made up of an array of progressive groups including the National Council of Jewish Women, the Feminist Majority Foundation and the National Organization for Women.

At a Sept. 1 press conference at the National Press Club in Washington, D.C., to announce the coalition’s agenda, Americans United President Paul Sim­mons called Roberts “a loyal foot soldier in the extremist efforts to remake our legal system.”

Simmons, a Baptist minister and University of Louisville professor, flew to Washington to speak on AU’s behalf because AU executive director Lynn was out of the country. Simmons noted that Roberts’ work in the Reagan administration provides ample evidence that the judge “would slam the courthouse door in the face of religious minorities seeking to protect their rights.”

On the same day, 160 law professors released a joint letter urging the Senate to defeat Roberts’ nomination. Profs. Erwin Chemerinsky of Duke and Peter Edel­man of Georgetown said the letter had been sent to the leaders of the Senate Judiciary Committee and that an updated one would be sent to the senators with additional signatures during Roberts’ confirmation process.

At a press conference, Edelman said, “Roberts has systematically shown himself, issue by issue, to be on the absolute far right of the spectrum of judicial interpretation, of the views about the Consti­tu­tion of the United States.”

The professors’ 10-page letter argued that Roberts’ work in the Reagan and the first Bush administrations revealed a record advocating for an expansion of “the role of religion in public institutions.”

Concern about Roberts also extended to the religious community.

On Sept. 1, the Baptist Joint Commit­tee for Religious Liberty (BJC) issued a report detailing its worries about Rob­erts. The report, written by BJC General Counsel K. Hollyn Hollman, centered on Roberts’ record on church-state issues.

“His briefs and comments all point in the same direction: toward lowering the wall of separation,” Hollman wrote.

In testimony to the Senate, however, Roberts claimed he had “no agenda,” only a “commitment” to “fully and fairly analyze the legal arguments that presented.”

For those organizations opposed to Roberts’ nomination, his performance during the hearings did not assuage concerns that Bush has taken a successful first step to fulfilling his campaign promises to move the federal courts, the high court in particular, farther to the right.

The opposition to Roberts and his determined questioning by the members of the Judiciary Committee, however, may portend an even tougher battle over the Bush administration’s pick to take O’Connor’s seat. Indeed, The New York Times Sept. 15 editorial concluded that, “By subjecting Judge Roberts to tough questioning” Democrats “are sending a message that if President Bush chooses a far-right nominee [to replace O’Connor], he can expect a major fight.”