William Fisher

NEW YORK, Aug 10 2005 (IPS) — With less than a month left before U.S. Supreme Court Justice nominee John Roberts appears for confirmation hearings before the Senate Judiciary Committee, groups on the political right and left are busily loading their heavy artillery – and the Republican chairman of the committee surprised Washington by firing the first shot.

Sen. Arlen Specter of Pennsylvania said he would ask the nominee for his views on the authority of Congress to pass broad social legislation. Democrats fear this authority would be curtailed by a more conservative court.

In a letter to Roberts, Specter asked about two recent Supreme Court decisions invalidating legislation Congress passed under its authority to regulate interstate commerce. Congress has for many years used that power to produce such legislation as environmental protections, civil rights laws and the Americans with Disabilities Act.

But the Supreme Court has been gradually eroding this authority, and Democrats have vowed to make interstate commerce a big issue in the Roberts hearings. Specter’s position produced glee in Democratic ranks.

In addition to congressional authority, issues likely to receive most attention during the confirmation hearings include separation of church and state, civil rights, women’s right to abortion, and a range of other “social issues” such as gay marriage, end-of-life decisions, and the powers of the White House versus those of Congress, and federal powers versus those of states.

Judge Roberts has also drawn scrutiny from liberals because he was part of the three-judge panel that gave the George W. Bush administration a key victory when it ruled that the military tribunals of detainees held at Guantanamo Bay, Cuba could proceed.

“How the U.S. should treat enemy combatants is a ‘litmus test’ for how strongly Judge Roberts believes in the principles of our Constitution,” Brian J. Foley, a professor at Florida Coastal School of Law in Jacksonville, told IPS.

“This is not a partisan issue; this is an issue of how large and powerful we think our government should be in relation to our individual rights. It affects us all.”

He added, “Every American should be concerned about finding out whether this Supreme Court nominee supports kangaroo courts and believes that a president can name anyone he likes an ‘enemy combatant’ and jail that person for the rest of his life.”

Roberts was nominated by Pres. Bush on Jul. 19, shortly before Congress began its August recess. Confirmation hearings before the Senate Judiciary Committee are scheduled to begin on Sep. 6.

Roberts has served on the U.S. Court of Appeals for the District of Columbia Circuit since 2003. As a government lawyer and in private law practice, he argued 39 cases before the Supreme Court. If confirmed by the full Senate, he would be the Supreme Court’s youngest member at age 50.

A Harvard Law School graduate, Roberts clerked for Chief Justice William Rehnquist in 1980-81 and has held positions in the Ronald Reagan and George H.W. Bush administrations.

He would be replacing Justice Sandra Day O’Connor, the first woman to sit on the Supreme Court, who announced she would retire when her replacement was confirmed. O’Connor is described as a “pragmatic conservative”, whose votes in many cases often constituted the “five” in 5-4 court decisions.

Since the president’s nomination, liberal and conservative advocacy groups have burned the midnight oil analysing Robert’s relatively thin paper trail to find opinions and points of view favorable to their respective causes.

The latest bomb thrown on the battlefield is the disclosure that, while in private law practice, Roberts volunteered his services to help a gay and lesbian rights group successfully argue a case before the Supreme Court. One conservative group used this to justify its withdrawal of support for Roberts.

But most conservative groups remained silent on the subject, while most liberal groups dismissed the issue as unimportant.

Americans United for the Separation of Church and State said, “Roberts, as Deputy Solicitor General under President George H.W. Bush, drafted a key legal brief urging the Supreme Court to scrap decades of settled church-state law and to uphold school-sponsored prayer at public school graduation ceremonies.”

The conservative pro-life Committee for Justice had high praise. “I think it’s a big victory for anybody who thinks that the Supreme Court has badly overstepped its legitimate authority over the past decades.”

The pro-choice National Abortion Rights Alliance (NARAL) announced it was launching a series of television ads in states represented by senators who are members of the Judiciary Committee.

“If Roberts is confirmed to a lifetime appointment, there is little doubt that he will work to overturn Roe v. Wade. As Deputy Solicitor General under the first President Bush, he argued to the Supreme Court that ‘Roe was wrongly decided and should be overruled’.,” NARAL said.

Roe v. Wade was the 1973 decision that established a woman’s right to choose to have an abortion.

The NARAL ad accuses Roberts of siding with violent extremists and a convicted abortion clinic bomber while serving in the solicitor general’s office, an accusation that Roberts’s supporters immediately condemned as a flagrant distortion.

The ad focuses on Roberts’s role in a case involving whether a 19th-century anti-Ku Klux Klan statute could be used to shut down blockades of health clinics by abortion protesters. The solicitor general’s office filed a friend-of-the-court brief siding with the clinic protesters, including Operation Rescue. The high court ruled 6 to 3 against the health clinics in January 1993.

In a guest op-ed, the right-leaning newspaper The Washington Times examined Roberts’s decision record on the U.S. Circuit Court of Appeals for the District of Columbia.

It said that of the nearly 200 decisions in which Roberts has participated, “Almost all of those were unanimous findings by a three-judge panel. But when the judges split, Judge Roberts sided with the court’s conservatives only slightly more often than with its liberals.”

But a spokesman for the American Civil Liberties Union, responded, “This profile doesn’t quite get it. Roberts is deferential to the executive branch, period – that is, the government. His deference to Congress is selective.”

The ACLU said Roberts wrote briefs calling for Roe v. Wade to be overruled, supporting graduation prayer, and seeking to criminalise flag burning as a form of political protest. All these positions were rejected by the Supreme Court.

Judiciary Committee Democrats have demanded that the White House turn over papers produced by Roberts during his term as Deputy Solicitor General in the Reagan administration. So far, the White House has declined to do so. The main issue is whether Roberts’s views during his government service or in private practice were his own or his clients’.