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August 3, 2005
Questionnaire Provides More Answers On Roberts

The Washington Post reports this morning that a questionnaire and other documents released by the White House provide more answers about the judicial philosophy of John Roberts, revealing his impulse towards judicial restraint and deference to Congress in fashioning law and policy. These revelations should soothe conservative nervousness about the potential for Roberts to become another David Souter, while causing more liberal anguish and opposition:

Responding to a question about judicial activism, Roberts said, "When the other branches of government exceed their constitutionally-mandated limits, the courts can act to confine them to the proper bounds. It is judicial self-restraint, however, that confines judges to their proper constitutional responsibilities." ...

The new documents disclosed by the archive that reflect Roberts' skeptical views regarding a "fundamental" right to privacy include a lengthy article on judicial restraint that he apparently drafted for publication in a journal of the American Bar Association under the name of then-Attorney General William French Smith, his boss.

The article approvingly quoted from a dissenting opinion by Justice Hugo Black in a 1965 court decision, in which the majority held that a Connecticut law forbidding the use of contraceptives was unconstitutional. Black's opinion, as cited in the draft, complained that the court had used "a loose, flexible, uncontrolled standard for holding laws unconstitutional." The draft article said that "the broad range of rights which are now alleged to be 'fundamental' by litigants, with only the most tenuous connection the to Constitution, bears ample witness to the dangers of this doctrine." ...

A second memo, sent by Roberts to the attorney general on Dec. 11, 1981, summarized a lecture six years earlier by then- Solicitor General Erwin N. Griswold at Washington and Lee University, which touched on the same theme. Griswold's lecture, Roberts said, "devotes a section to the so-called 'right to privacy,' arguing as we have that such an amorphous right is not to be found in the Constitution. He specifically criticizes Roe v. Wade."

The words "so-called" do not appear in Griswold's lecture. But Roberts drafted a letter to Griswold, signed by Smith, saying he was cheered that Griswold made "many of the same points" that the administration had about these matters.

Those quotes should get NARAL and its political allies into overdrive, and indeed the Post quotes the pro-abortion group president as accusing Roberts of running a "lawyerly" political campaign, intended on deceiving people into thinking that he has an open mind. Open-mindedness, however, isn't what NARAL or the Left want from a Supreme Court nominee; they want someone who will parrot the party line on privacy rights, primarily Roe v Wade, without opening their minds to the poor legal craftsmanship of the decision. NARAL and Senators who rely on the abortion-lobby support want a nominee who will pledge to be bound by stare decisis, which means applying a bullheaded closed-mindedness to any new cases which might substantially challenge previous court precedent.

Nor does the reporting from the Post sound exactly neutral in this case. The Post breathlessly tells its readers that "the White House did not previously disclose Cheney's role in questioning Roberts more than two months before he met Bush," and leads with the shocking information that the administration had started interviewing candidates for a potential Supreme Court opening months ago, including Roberts. Mike Allen and R. Jeffrey Smith make it sound quite conspiratorial, later noting that he met several times with AG Alberto Gonzales, Bush advisors Andrew Card and (cue the Imperial Theme) Karl Rove, among others in at least three separate interviews before Sandra Day O'Connor stepped down.

Well, excuse me for noting the obvious, but people have talked about the certainty of at least one Supreme Court nomination during this Bush term since the 2004 Presidential campaign. In fact, for both parties, the issue generated plenty of fund-raising fodder, hardly making a secret of the point. One would hope that any president who had this many potential openings facing him would have already begun to develop a short list of potential nominees to fill the spots. One does not start narrowing down candidates without first meeting with them to judge their temperament, their philosophies, and their willingness to go through the ever-increasing insanity necessary to get confirmed.

Common sense tells us that any administration could not possibly conduct its due diligence on a key position such as this court opening in the couple of weeks between O'Connor's resignation and the announcement of Roberts as her replacement. Even at that, the media griped at the length of time Bush took to make his decision -- and then later claimed he rushed the announcement to distract people from the Plame leak investigation. The lack of 'disclosure' that Cheney and others met with Roberts prior to O'Connor's resignation means nothing, and in the context of this article, sounds rather silly.

The documents released show that the White House does not feel the need to hide Roberts' view from the Judiciary or the American public. It strengthens their case that the remaining unreleased documents have been withheld for principled reasons, protecting the Executive attorney-client privelege. The Senate has plenty of information from which to derive their assessments of John Roberts as an attorney, a jurist, and a Supreme Court nominee. Now, conservatives also have their answers on Roberts' dedication to judicial restraint and conservativism as well, and can reasonably deduce that he will not transform into the Second Coming of Souter, once installed.

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Posted by Ed Morrissey at August 3, 2005 6:31 AM

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bRight & Early is SupportingFreedom Alliance in Blogathon 2005Click to Register and Donate Last Wednesday I wrote about The John Roberts Nomination Circus and it appears that the first act in the center ring is a balancing act by none other than... [Read More]

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