Marjorie Cohn: No On Roberts

The Senate Judiciary Committee hearings have ended and the jig is up. Although Roberts characterized his judicial role as merely an "umpire," he consistently played hide the ball about his views during the questioning. Nevertheless, Roberts' disingenuousness came through in spite of his evasions. And the senators have enough information about Roberts' record to know he would move the Court dramatically to the right, eviscerating the hard-earned gains of the civil rights movement.

In a well-orchestrated performance, Roberts refused to divulge his real opinions about abortion, end of life decisions, the constitutionality of the 1964 Civil Rights Act and the 1968 Fair Housing Act, and the power of Congress to pass statutes that protect people or legislation to stop a war.

Roberts painted his refusals to answer as necessary to maintain judicial ethics, repeatedly responding that these issues might come before the high court.

Roberts' ethical veneer cracked, however, when Russ Feingold (D-Wis) challenged him about a very recent conflict of interest Roberts displayed with his decision in Hamdan v. Rumsfeld. At the same time Bush & Co. was interviewing Roberts for the Supreme Court, he voted to give Bush unfettered power to use military commissions that violate due process to try suspected terrorists, and to deny them access to US courts to challenge violations of the Geneva Conventions.

Roberts demonstrated an encyclopedic - indeed, photographic - memory for the details of every case the Supreme Court had decided and every memo he had ever written. But when Feingold asked Roberts about the dates of his interviews for the Court, and whether they overlapped with the dates of his decision in Hamdan, suddenly Roberts stuttered, stammered and couldn't remember.

Roberts also misled the senators in his statements about how he would measure laws that discriminate on the basis of gender. The Supreme Court has held that the Equal Protection Clause requires that racial classifications must be judged with strict scrutiny, gender classifications should be examined with intermediate scrutiny, and classifications based on factors other than race or gender will be upheld if there is a reasonable basis to support them. Some heightened level of scrutiny is necessary only if the classifications discriminate based on race or gender.

Roberts told the committee that he had always supported a heightened level of scrutiny for gender classifications. But in a draft article he wrote in the early 1980s when working for Attorney General William French Smith, Roberts decried any heightened scrutiny for classifications that discriminate on the basis of gender. Roberts lied about his record on sex discrimination.

When challenged about his prior statement that there is a "so-called 'right to privacy'" in the Constitution, Roberts declared that privacy is indeed protected by the Constitution. He cited the Fourth Amendment's protection against unreasonable searches and seizures, the First Amendment's guarantee of freedom of religion and prohibition on establishment of a religion, and the Third Amendment's prohibition on quartering soldiers in private homes. Roberts also said that liberty is protected in the Constitution, and he agreed with Griswold v. Connecticut, which struck down a state statute that prohibited the sale of contraception. But Roberts stopped short of admitting that liberty encompasses a woman's right to abortion. We are left with the statement in Roberts' brief that Roe v. Wade was wrongly decided and should be overruled.

The Democratic senators on the committee were concerned about whether Roberts would overturn Congressional statutes that protect minorities, women, gays, the poor, the disabled, and the environment. Roberts deflected Illinois Senator Richard Durbin's question about whether Justice Roberts would protect the little guy by saying: "If the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then, the big guy is going to win, because my obligation is to the Constitution."

What Roberts continually hid from the senators, however, was an explanation of how he interprets the Constitution, which does not contain the words "the little guy" or "the big guy." While denying he is an "ideologue," Roberts used his extraordinary intellect to dodge every question that would have uncovered his true ideological agenda.

But that agenda comes into focus when one examines his record as a lawyer in the Reagan and Bush I administrations, and as a corporate lawyer. Roberts argued repeatedly against the rights of the little guy.

On the final day of the hearings, Rep. John Lewis (D-Ga) testified against the Roberts confirmation. Lewis, one of the giants of the civil rights movement, was beaten, arrested and jailed more than 40 times for peaceful, nonviolent demonstrations against legalized segregation in the South.

Lewis said, "I fear that if Judge Roberts is confirmed to be Chief Justice of the United States, the Supreme Court would no longer hear the people's cries for justice. I feel that the leadership of the court would promote politics over the protection of individual rights and liberties. If the federal courts had abandoned us in the civil rights movement, in the name of judicial restraint, we might still be struggling with the burden of legal segregation in America today."

Governor Howard Dean has taken a strong stand against the confirmation of Roberts. "The consistent mark of Roberts' career is a lack of commitment to making the Constitution's promise of equal protection a reality for all Americans, particularly the most vulnerable in our society," Dean wrote in an op-ed last week.

The Democrats on the Senate Judiciary Committee should follow Dean's lead. They must vote against the confirmation of John Roberts for Chief Justice of the United States.

Marjorie Cohn, a contributing editor to t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists.

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