News Intelligence Analysis
Bush Nominates Roberts as
Chief Justice of the Supreme Court
Eight Modest Questions for
Judge Roberts:
September 5, 2005
See Senator
Kennedy's Statement
Eight Modest Questions for
Judge Roberts:
Four from the New York Times and Four
from the Yurica Report:
From the
New York Times
September 4, 2005
Quizzing Judge Roberts
Four New York Times Questions for Judge
Roberts:
One Supreme Court justice can make a huge difference in what
kind of nation America is. Consider Sandra Day O'Connor, who
in a series of 5-to-4 decisions cast the deciding vote holding:
(1) that the federal government has broad power under the Clean
Air Act to fight air pollution; (2) that states cannot impose
new restrictions on abortion rights; (3) that courthouses cannot
post the Ten Commandments; and (4) that the McCain-Feingold campaign
finance law is constitutional. John Roberts, the appeals court
judge who is President Bush's nominee to replace Justice O'Connor,
could have an equally powerful influence. As far as we know right
now, he could wipe away all of these rulings and many more.
Judge Roberts's confirmation hearings begin this week. No
one disputes that he is an accomplished lawyer, but the Senate
and the country need to know a great deal more. While the nominee
cannot be expected to announce in advance how he would vote on
any given case, the Senate has a duty to scrutinize his views
on important legal questions, and determine whether - given the
critical role Justice O'Connor has played in upholding fundamental
rights - he would be the kind of justice the nation needs right
now.
That will take work. Judge Roberts's record as a judge is
thin, and much of his legal career occurred behind the scenes.
The Bush administration has refused to hand over many of the
documents he prepared as a government lawyer, which would shed
light on his legal thinking. Inexplicably, at least one file
of documents that could have helped clarify his views on affirmative
action went missing after being reviewed by Bush administration
lawyers.
At the hearings, senators should ask Judge Roberts tough questions
about a number of key issues:
Privacy and Abortion Rights Judge Roberts once
wrote that abortion rights are based on a "so-called 'right
to privacy,' " and as a lawyer he helped write a brief that
argued that Roe v. Wade should be reversed. The right
to privacy is the basis not only for Roe, but also for
Griswold v. Connecticut, the 1965 decision in which the
Supreme Court struck down state laws that made the sale of contraceptives
illegal. Does Judge Roberts believe in a constitutional right
to privacy, and does he agree with Roe and Griswold?
Congressional Power Judge Roberts appears to
be sympathetic to a far-right "federalism" campaign
that seeks to restrict Congress's power to pass laws that protect
the environment, keep workplaces safe and prevent discrimination.
He wrote an opinion in a case involving the Endangered Species
Act that is particularly troubling in this regard. Does he believe
Congressional power should be reduced, and if so, in what ways?
Civil Rights In the Reagan administration, Judge
Roberts fought for a very narrow interpretation of the Voting
Rights Act that would have made it harder for blacks to be elected
to office. He has been dismissive of other important civil rights
protections, and may oppose most or all forms of affirmative
action. What are Judge Roberts's views on civil rights, including
affirmative action?
Church-State Separation As a government lawyer,
Judge Roberts advocated allowing school prayer at school ceremonies,
a position Justice O'Connor opposed. He has also given other
indications that he might favor greatly weakening the wall between
church and state. How far would Judge Roberts go in allowing
prayer and religious symbols in schools and on government property,
and what limits does he feel the Constitution puts on direct
public aid to religious activities?
Judge Roberts's supporters are doing their best to make his
confirmation appear to be a sure thing. They have been pushing
for a quick vote - even in the wake of Hurricane Katrina - and
they are criticizing Democrats' insistence that the Senate should
get all of the relevant documents from Judge Roberts's government
service. But the only responsible way to proceed on a Supreme
Court nomination is with deliberation. If he is confirmed, Judge
Roberts will help define Americans' rights for decades to come.
The burden is on Judge Roberts to show that he is the right person
for this monumentally important job.
Copyright 2005 The New York Times Company
News Intelligence Analysis
Quizzing Judge Roberts:
Four Yurica Report Questions
for Judge Roberts
Power of the Federal Courts A number of television
personalities and congressional leaders have advocated limiting
the power of the Federal Courts. Chief Justice Rehnquist in his
annual report repeatedly warned congressional leaders to keep
their hands off the court system. He believed that the courts
are a separate branch of government and congress should not attempt
to control the courts. Does Judge Roberts agree with the former
Chief Justice Rehnquist's warnings to congress or does he favor
legislation that would limit the power of the Supreme Court and
the federal court system? Does Judge Roberts believe that Congress
should pass legislation to limit the power of the courts?
Weight of Corporations against Individuals: An Elephant
vs. a Bunny Rabbit: The oath of office for a Supreme
Court Justice (Title 28, Chapter I, Part 453 of the United
States Code) requires a judge to swear or affirm that he
will "administer justice without respect to persons and
do equal right to the poor and to the rich, and...faithfully
and impartially discharge and perform all the duties incumbent
upon..." the office. Since the laws governing corporate
law in this country identify a corporation as an artificial "person,"
does Judge Roberts have criteria that he applies to offset the
inherent greater respect or advantage that artificial corporate
entitities may have because of legal advantages inherent in their
artificial structure over the powerless, weak, and poor? And
does he have a criteria that equalizes the corporate entities
appearing in court in contrast to a single housewife or a single
child who may be a plaintiff against the corporate entity--in
other words--by what criteria does Judge Roberts equalize an
elephant against a bunny rabbit (especially if elephants have
an advantage in the law)? If the judge does not have a criteria,
how does he insure to his own satisfaction that he is not prejudiced
against a child or prejudiced in favor of the corporate entity?
Is there an objective test that can be applied to any justices'
decisions to reveal bias in his or her decision? How effective
is the sworn oath then? How did Judge Roberts equalize the power
of the government against the child who ate a French Fry?
Using Biblical Criteria in Decision Making:
Justice Scalia has recently cited Romans 13:1-5 in an article
as a biblical passage that justifies, in his opinion, the death
penalty. Does Judge Roberts join with Justice Scalia on the Romans
13 passage? If Judge Roberts does not agree with Justice Scalia
on the Romans 13 passage, does Judge Roberts believe in the efficacy
of using the Bible as support for any judicial argument in judicial
decisions? Or in speeches as Justice Scalia did? Would Judge
Roberts entertain citations from the Bible by a lawyer as legal
authority for any position being argued? If so, how would Judge
Roberts justify his decision to allow the citations? And how
would Judge Roberts weigh the value of those citations?
Churches Involved in Political Campaigns: Many
clergymen are becoming increasingly more active in political
campaigns. Churches are using their facilities for political
solicitations and get out the vote campaigns as well as subtle
or thinly disguised endorsements of candidates. Does Judge Roberts
believe that churches should become more involved in the political
process or less involved? What is Judge Roberts' reasoning on
the issue?
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