When President Bush nominated John Roberts as the next Supreme Court justice last week, I have to admit that I was disappointed. I can't say that I was particularly surprised at the choice; even my own sometimes idealistic liberal optimism had not led me to believe that Bush was going to nominate someone unlike Mr. Roberts in political leanings or views on judicial activism. After all, it seemed like Bush was pretty scared by Sandra Day O'Connor's frequent tie-breaking decisions over the years; perhaps he just wanted a smart guy who would keep things quiet and conservative over on First Street.
Nevertheless, when it comes to the Supreme Court and its decisions, I am what you might call a one-issue hoper. The one issue is abortion, and the hope is that the conservative justices might have a little compassion and refrain from projecting their personal faiths onto the entire country. Perhaps this is unrealistic, and I recognize that liberal justices often get criticized for treating the judicial branch as the legislative, but I, like many women, feel a strong personal connection to this particular issue.
Because of this, I can't help but worry about all the talk that's been going on regarding the possible overturning of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion in the United States. Bush has made it clear on various occasions that he's a big fan of this plan, as have many other Republicans in the administration.
We got lucky when Justice O'Connor was still sitting: in 1992, she was in the majority of a 5-4 decision reaffirming abortion as a woman's constitutional right, and in 2000 ,she again broke the tie by deciding in favor of striking down the ban on partial-birth abortions. And now, without O'Connor upholding the fundamental right of choice, it's a little unclear whether women will be able to control their own bodies in 20 years.
In addition to the uneasiness I get from the Supreme Court's recent history, it's impossible to ignore the whisperings surrounding Mr. Roberts's own record regarding abortion. To begin with, there is the whole issue of his wife. An active legal advisor for "Feminists for Life," Mrs. Roberts has shown herself to be a staunch opponent of any rights having to do with abortion, a dedication that has drawn interest and scrutiny from members of both parties as her husband's confirmation hearing approaches. It is disconcerting to contemplate the implications this work has for Mr. Roberts's own views, and it is hard to believe that his opinions could drastically differ from his wife's.
Senator Ted Kennedy is right that Mrs. Roberts's pro bono work should be "out of bounds" when it comes to discussing her husband, but abortion is an issue where, as they say, the personal often becomes the political.
Perhaps the most disconcerting aspect of Mr. Roberts's nomination, though, has been his relative silence on the issue of abortion. Even apart from Mrs. Roberts's ventures, Mr. Roberts's own record is ambiguous at best, worrisome at worst.
Back when Roberts was the principal deputy in the solicitor general's office, he was a co-writer and signatory of a brief that unabashedly declared, "We continue to believe that Roe was wrongly decided and should be overruled." However, he has repeatedly said in recent years that no lawyer's personal views should be inferred based on official legal documents that represent a client. He then confused the situation even further by stating, during his confirmation hearings for a seat on the United States Court of Appeals for the District of Columbia Circuit a couple years ago, that "Roe is binding precedent, and if I were confirmed as a circuit judge, I would be bound to follow it."
So what does this even mean? It's all well and good to be a good boy and follow binding precedents as a circuit judge, but if Mr. Roberts becomes a Supreme Court justice, he will be making the precedents. Is it fair to make any conclusions based on these statements about how he will respond to questions of abortion rights raised during his confirmation hearings or, if he is confirmed, during his time on the bench?
The only conclusion that I can make, even after scrutinizing all the articles and helpful diagrams and charts in the New York Times, is that John Roberts is a confusing, confusing man. Apart from these already-ambiguous statements from his record, he hasn't left much in the way of evidence of his own opinions, and all the speculations regarding the issue have further clouded the truth about his views. It is widely predicted that he will avoid the issue during his confirmation hearings, and all this secrecy has led abortion rights leaders to accuse him of having a hidden agenda.
I'm not quite sure that I would put it that strongly, but it's hard to outright disagree with these leaders, considering Mr. Roberts hasn't faced one of the biggest questions surrounding his confirmation. One reassurance is that a nominee who disagrees that the Roe v. Wade decision is settled law and, therefore, off-limits to activist change, would, according to Democratic Senator Patrick Leahy, have a lot of trouble getting confirmed.
For all the conservatives' concerns about judicial activism, apparently activism in the direction of their side of the political spectrum is just as dangerous for poor Mr. Roberts. After all, both Justices Scalia and Thomas have been criticized by Democrats for overruling decisions "willy-nilly," according to Leahy, and also have been praised by President Bush for treating the judicial branch as a neutral body and not as an extension of the legislature.
Democrats in the Senate have declared the need to search deeper into Mr. Roberts's judicial record to try and shed light on his views. But in my opinion, a much easier and clearer way to find out what Mr. Roberts thinks would be to ask him. It is the responsibility of those questioning him during his confirmation hearings to focus on abortion in order to get some kind of answer. It's like finding out what you got on a big test -- even if it's not the grade you were looking for, you feel better at least knowing up front.
Allowing Mr. Roberts to be confirmed without getting to the heart of the issue would be worrisome -- to both conservatives and liberals -- and downright irresponsible. Please, John, stop being so darn mysterious, and let us know how you feel.
