Other Views
Roberts Nomination Solid
Washington
ince the day President Bush
nominated John Roberts to fill
the open seat brought about by
Justice Sandra Day O'Connor's
announced retirement, a panoply of
interest groups — liberal and conser-
vative — have geared up for political
warfare. Each side has committed mil-
lions to a battle royal, leaping into the
fray to define the nominee even before
the confirmation hearings.
Jewish groups ought to steer clear of
this rank politicization of the judicial
process. It ill serves Jewish interests
and hurts the rule of law as well.
Liberal Democrats started down this
road of politicization with their 1987
opposition to Robert Bork's Supreme
Court bid. Since then, both sides have
treated nominations to lower federal
courts as a political mud fight, creat-
S
Marshall Breger is professor of law at the
Columbus School of Law, Catholic
University ofAmerica. He was a special
assistant to the president under Ronald
Reagan and was Reagan's liaison to the
Jewish community.
ing a single-issue litmus test that they
avowedly use to judge judicial nomi-
nees on the basis of politics, not on
the basis of their judicial skills.
Indeed, in a 1991 New York Times
op-ed, U.S. Sen. Charles Schumer, D-
N.Y., a member of the Senate
Judiciary Committee, maintained that
the senators should feel free to reject
nominees on the basis of their ideolo-
gy notwithstanding their qualifications
and competence. This politicization,
of course, is a function of the rampant
judicial activism that has plagued the
court in recent years. Part of this is the
fault of the U.S. Congress, which con-
tinually delegates difficult policy
choices to the courts, refusing to bite
the bullet.
But a larger part of the blame
belongs to the judges, too many of
whom have freely substituted their
own policy preferences for the legisla-
tures' on issues great and small. This is
not a question of one's approach to
statutory interpretation but rather of
inappropriate, indeed often "poetic,"
license by judges in interpreting
statutes as well as the U.S.
nominee's general judicial phi-
Constitution.
losophy
— including his gen-
Roberts is a lawyer's lawyer
eral
jurisprudential
approach
who will approach cases as a
to
the
commerce
clause
or the
lawyer, not a politician. He
"right of privacy." They can
will look at the facts and the
ask about his preferred
law set before him rather than
method of constitutional and
bring a preordained political
statutory interpretation and
or social philosophy to cases.
That is why the Washington
MARS HALL his vision of the role of the
courts in a democracy. They
legal community, Republican
BER GER
should not, however, demand
and Democrat, has so heartily
Po int
answers regarding a nominee's
applauded this appointment.
personal political philosophy
At age 50, Roberts has been
or how he or she will vote when faced
an appellate court judge, a distin-
with a particular set of facts.
guished government lawyer, a litigator
Thus the Jewish organizations, like
before the Supreme Court with 39
the
Democratic senators, have a
arguments to his name, the managing
choice:
They can limit their ques-
and
editor of the Harvard Law Review
tions to scrutinizing the nominee's
a respected insider in the Washington
legal skills, seeking an explanation of
legal profession.
his judicial philosophy and exploring
True, he is by instinct a conservative
who accepts, as he puts it, 'the cardinal his judicial temperament. Or they
principal of judicial restraint," but one can set up single-issue litmus tests,
grill the nominee on his personal,
should expect no less when the nation
has trended "red" in recent years, twice political or religious beliefs or try to
trap him into commenting on how
electing a conservative president and a
he will vote on particular legal issues
conservative Congress.
and factual settings likely to come
Senators have the right — and
before the court. ❑
indeed the duty — to inquire about a
At issue: The Roberts nomination to the U.S. Supreme Court
Nominee Eroded Freedoms
Washington
ome will say that President
Bush, in nominating D.C.
Circuit Court Judge John
Roberts to the U.S. Supreme Court,
has selected a fine attorney with a dis-
tinguished academic record and a host
of friends willing to testify to his bril-
liance, modesty and good character.
But when the stakes are this high,
we need to look at the truth — the
whole truth.
And unfortunately Judge Roberts
— now poised to take a lifetime posi-
tion as a final arbiter of the U.S.
Constitution — has chosen in his
career to erode fundamental rights,
rather than defend them.
Roberts has been openly hostile to
the fundamental right to privacy
affirmed by Roe v. Wade, and he
implemented legal strategies that
S
Phyllis Snyder is president of the
National Council of Jewish Women, a
volunteer organization inspired by
Jewish values to improve the quality of
life for women, children and families
and ensure individual rights and free-
doms.
would lead to its reversal. He argued
before the Supreme Court in Rust v.
Sullivan in support of a gag rule on
doctors working in family-planning
programs receiving federal funds,
effectively barring them from counsel-
ing patients on abortion as an option.
And though the merits of Roe were
not at issue in the case, he gratuitous-
ly stated that "Roe was wrongly decid-
ed and should be overruled."
Some will say that in the confir-
mation hearing for his current seat
on the U.S. Court of Appeals for the
District of Columbia Circuit,
Roberts acknowledged that Roe is
"settled law." But that is of little
comfort. The truth — the whole
truth — is that as a Supreme Court
justice, Roberts would have the
opportunity to create precedent, not
merely follow it. And the outright
reversal of Roe v. Wade is not neces-
sary to render its protections moot.
Roe has already been wounded by
many unreasonable restrictions and
will die a death by a thousand cuts
should Roberts confirm our fears
and join his philosophical allies on
the Supreme Court.
means to have our privacy
And make no mistake: The
threatened. And we know
clock is ticking. The court is
what it means to be com-
expected to hear a case in its
pelled to suppress our own
next session considering
religious beliefs in order to
whether a woman's health can
survive in a society that
be held hostage to laws
imposes another religion's
restricting medical abortion
beliefs on us instead.
options.
Simply put, the hallmark of
Roberts has also acted
PHYL LIS
democracy is religious free-
against the bedrock of separa-
SNYD ER
tion between religion and
Count erpoint . dom. And we will suffer
greatly if that freedom is lost.
state. In Lee v. Weisman, he
The
Jewish community has
argued in favor of clergy
thrived
in
this
country largely because
prayers at public-school ceremonies
of
this
freedom.
and in all aspects of "our public life,"
Roberts has allied himself with the
as expressions of our "nation's religious
most conservative forces in the legal
heritage." He argued to replace the
profession by the positions he has
standard that forbids government offi-
taken.
cials from acting with a religious agen-
In the next two months, as our sen-
da, endorsing religion, or excessively
ators
consider the future of John
entangling government and religion
Roberts, we should consider our own
with a more permissive test allowing
future. Groups like the National
government to sponsor religious
Council of Jewish Women have been
expression that is not "coercive."
speaking out to the decision makers in
Some will say these are mere tech-
Washington, leading the charge to
nicalities. But the truth — the
protect our fundamental freedoms.
whole truth — is that this is a very
Isn't it time we all took a stand? Our
slippery slope. As Jews, we know
senators need to hear from us. If not
what it means to have liberties
now, when?
stripped away. We know what it
❑
8/4
2005
55
.