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Morning Report 7/20/05Supreme Insult


John Roberts: Toady of the right-wing establishment

He’s stocky, blunt-nosed, and, many would say, warty-skinned. If size matters, and it certainly does to his ilk, we’re talking only two to three inches. He’s currently endangered, but he’s being protected at the highest levels of the U.S. government. Other than Karl Rove (above), I could only be referring to Bufo californicus (above).

The latter, commonly called the arroyo toad, figures prominently in a dissent written in July 2003 by Supreme Court nominee John Roberts, who is quite a handsome and well-spoken fellow. Unlike either of the two others, Roberts is respected even by many of his foes.

George W. Bush waxes most eloquent when talking about neat, handsome, dark-haired, young-looking conservative fellas—like home-school guru and prayer partner Mike Farris (left), whom the president admiringly asked in November 2003 whether Farris had been “pumping iron.” Bush and Farris, joined by James Dobson, Watergate felon Chuck Colson, and ex-Reagan Interior Secretary Don Hodel prayed together before Bush signed a “partial-birth abortion” bill back then. Hey, the president himself believes he has a mandate.

Last night, as the Washington Post reported, Bush interrupted prime time to talk about his new guy (left):

“John Roberts has devoted his entire professional life to the cause of justice and is widely admired for his intellect, his sound judgment and his personal decency,” Bush said, with Roberts at his side. The president added, “He is a man of extraordinary accomplishment and ability. He has a good heart. He has the qualities Americans expect in a judge: experience, wisdom, fairness and civility.”

Yeah, well, we expect all that from our president, too. Leaving that aside, let’s not get carried away by Roberts’s gracious and humble little thank-you speech—though it sure was a bracing contrast to the pedantry of windbags like Robert Bork or the arrogant ignorance of Alberto Gonzales.

Speaking of which, forget about any notions that Roberts, who looks like a cinch for Senate approval to spend the next few decades shaping the Supreme Court, will turn out to be another David Souter. No, not even an Anthony Kennedy, probably.

I’m no expert; see what the wonks say (my colleague Chisun Lee just compiled a handy short list of SCOTUS blogs).

Sandra O’Connor was a swing vote, but John Roberts won’t be. Firmly in the right-wing establishment as a Federalist Society member, he hasn’t been as fanatically against abortion as, say, Eric Rudolph, so Dobson and the rest of the religious right probably aren’t creaming in their jeans.

But Roberts is a smart guy and a hard-right one, and this could be a historic selection. As Lee Cokorinos of the Equal Justice Society pointed out before Bush’s announcement:

[The religious right] bitterly opposed Reagan’s nomination of Sandra Day O’Connor to the Supreme Court, (who [Priscilla] Owen may replace), sensing that [O’Connor] would not vote to overturn Roe.

Cokorinos was wrong about Owen, but right in his analysis about the impact of O’Connor’s August 1981 Supreme Court nomination on the nation’s electoral politics:

This frustration [over the O’Connor selection] led to Pat Robertson‘s decision to run for president in 1988, James Dobson of Focus on the Family to split from the GOP and back the far-right Constitution Party’s Howard Phillips in 1996, and Pat Buchanan‘s decision to fight Bush I in the 1992 presidential primaries, then split from the party and run on the Reform Party ticket in 2000.

However, this troubled relationship has changed in important ways over the past decade.

Karl Rove understands that this rift has cost the right dearly and has worked indefatigably to secure the support of the religious base. In response, evangelicals and conservative Catholics enthusiastically campaigned for Bush and turned out for him in two elections. Rove and his partner Ken Mehlman were able to draw on this base to turn out 350,000 volunteers for the 2004 presidential campaign, neutralizing the Democrats’ unprecedented volunteer effort.

Roberts seems to be a shrewd choice, from the Bush regime’s perspective, unless it turns out that he murdered someone. He’s a member in great standing of the D.C. lawyers’ establishment, spending a decade as a partner at mighty Hogan & Hartson, from where he argued many cases in front of the Supreme Court itself. Before that, he worked as an associate White House counsel for Reagan and the No. 2 Solicitor General under Bush’s pappy. Since ’03, he’s been on the powerful D.C. Circuit Court of Appeals.

In addition, Roberts seems to have an agreeable personal style and a sense of humor. In the case involving Bufo californicusRancho Viejo v. Norton (2003)—he dissented from his panel’s conclusion that the arroyo toad, even though a “non-commercial species,” was protected under the regs and laws relating to interstate commerce. Rancho Viejo wanted to bulldoze the toad’s California land, you see, but the court wouldn’t let it happen. Roberts, a native of Buffalo, wanted the court to reconsider a decision it made before he was appointed. He lost, but he apparently couldn’t resist taking a shot, writing in his dissent:

The panel’s approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California, constitutes regulating “Commerce … among the several States.”

“For reasons of its own lives its entire life in California”—pretty clever.

But the lefty watchdog Alliance for Justice finds nothing to laugh about this morning:

“As expressed in one case where [Roberts] would have invalidated a provision of the Endangered Species Act, his exceedingly restrictive view of federal law-making authority—more restrictive than the current Supreme Court’s—could threaten a wide swath of workplace, civil rights, public safety and environmental protections.

In his years of service as a political appointee in the administrations of Presidents Reagan and George H.W. Bush, Judge Roberts also helped craft legal policies that sought to weaken school desegregation efforts, the reproductive rights of women, environmental protections, church-state separation and the voting rights of African Americans.”

Not only toads can feel hapless.

Alliance for Justice promises a “complete analysis of Roberts’s record on and off the bench.” But the group’s August 15, 2003 report on Roberts, during the battle over his ultimately successful ascension to the D.C. appellate bench, is plenty interesting to read, adding specifics. From the ’03 report’s intro:

While working under Presidents Reagan and Bush, Mr. Roberts supported a hard-line, anti-civil rights policy that opposed affirmative action, would have made it nearly impossible for minorities to prove a violation of the Voting Rights Act and would have “resegregated” America’s public schools. He also took strongly anti-choice positions in two Supreme Court cases, one that severely restricted the ability of poor women to gain information about abortion services, and another that took away a key means for women and clinics to combat anti-abortion zealots.

And if you’re curious about Roberts’s potential impact on the precariously balanced Supreme Court, a similar situation existed on the D.C. Circuit Court.

No matter how most of the U.S. press has been reporting the increasingly bitter wrangle over courts and judges, it was the GOP-controlled Senate that successfully stonewalled the wishes of a president (Bill Clinton). And it’s the Bush regime that has been steadily packing the courts with activist judges.

This is how the Alliance for Justice described the politics swirling around the D.C. Circuit in 2003, while Bush’s handlers were trying (successfully, as it turned out) to force Roberts onto that bench:

The D.C. Circuit currently has twelve authorized judgeships, with four active Democrat-appointed judges, four active Republican-appointed judges, and four vacancies. The oldest of these vacancies was created on August 31, 1996, when Judge [James] Buckley assumed senior status.

If President Bush were to fill all of the existing vacancies on the D.C. Circuit, Republican appointees would dominate this currently balanced court. President Clinton nominated Elena Kagan and Allen Snyder—a well-respected partner at Hogan & Hartson, Roberts’ law firm—to fill two of the vacancies on the D.C. Circuit, but neither was confirmed by the Republican-controlled Senate, thereby preserving Republicans’ ability to take control of the court. Had Snyder and Kagan been confirmed, filling the remaining two vacancies with Republican nominees would have retained the court’s balance.

Instead, confirming both of President Bush’s current nominees will tilt the court decisively to the right. Consideration of President Bush’s nominees to the D.C. Circuit, including Mr. Roberts, must take into account the current close division between Republican- and Democrat-appointed judges on that court and the refusal by Republican senators to take up President Clinton’s nominees to it. Senators refuse to confirm any ultra-conservative Bush nominee to the court who would upset the court’s current balance.

That cause is lost. Only last month, the D.C. Circuit, arguably the nation’s second most important court, gained Janice Rogers Brown as a member.

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