Tuesday, July 19, 2005

Supreme Speculation: The John Roberts Guessing Game Begins

With President Bush’s selection of John Roberts as Sandra Day O’Connor’s successor on the U.S. Supreme Court, the hysteria regarding Roberts' views will now commence. Roberts became a federal judge in 2003, and little is known about how he might decide pivotal cases on the Court, but that will not keep interest groups from speculating.

In the upcoming days, you will see a substantial amount of speculation about Roberts’ temperament as a jurist. Much of it may turn out to be wrong. As a guide to what might be before us, I decided to look at the rhetoric surrounding another Republican-appointed Supreme Court nominee with a paucity of written opinions, David Souter. Some of the rhetoric may sound awfully familiar as Judge Roberts’ nomination moves through the U.S. Senate.

In 1990, President George Bush appointed David Souter, at the time a little known New Hampshire State Supreme Court judge and former State Attorney General, to the Supreme Court just three days after Justice William Brennan retired. Widely considered a conservative at the time of his nomination, Souter has morphed into a reliable vote for the left during his tenure. Did we know what was coming?

At the press conference held to announce Souter’s appointment, Bush said:

“His opinions reflect a keen intellect as well as wide balance between the theoretical and practical aspects of the law. Judge Souter is committed to interpreting, not making the law. He recognizes the proper role of judges in upholding the democratic choices of the people through their elected representatives, with constitutional constraints.”

Q: Did you ask Judge Souter his views on abortion? Do you know what his views are, and affirmative action, and all these things that have become so controversial - the major issues of the day?

A. No, and I had one meeting with Judge Souter. I was very impressed, but in my view it would have been inappropriate to ask him his views on specific issues… I did not, and would not, as I think I've said before, when I talked about - not just here but at other times - the litmus test approach. I wouldn't go into that with him.

Q. Does that mean you do not care what he thinks?

A. It means I have selected a person who will interpret the Constitution, and in my view not legislate from the Federal bench.

Q. You're not certain in your own mind how Justice Souter will vote if Roe v. Wade comes before the Court next term?

A. What I'm certain of is that he will interpret the Constitution, not legislate from the Federal bench…

…And when you see the background of this man, I'm confident the Senate will share my views. You're looking for fairness, you're looking for equity. I wrote down a bunch of words to help me make the determination, and I wish I had them, because they're all along those lines - experience. And I did say that I'd like somebody that will interpret the Constitution, not legislate.


Following the nomination, interest groups began to immediately formulate their opinions of Souter. Liberal groups decried the selection, pointing to cases Souter prosecuted as Attorney General of New Hampshire in which he urged that demonstrators arrested at the Seabrook nuclear power plant be given more than suspended sentences. He also argued, unsuccessfully, that it was constitutionally permissible to fly the American flag at half staff on Good Friday and that New Hampshire could force residents to carry the state slogan, ''Live Free or Die,'' on their license plates.

The liberal People for the American Way unearthed a document written by Souter in which he referred to abortion as “the killing of unborn children,” which prompted Kate Michelman of the National Abortion Rights Action League to say, “ the use of rhetoric commonly used by anti-choice extremists is profoundly alarming.”

Some choice quotes from pro-abortion groups in 1990:

Abortion rights advocates Tuesday escalated pressure on the Senate to reject Supreme Court nominee David Souter, warning of political reprisals against those who vote for him. We urge you to keep the faith of the American people and American women, women who will not forget who nominated the next justice and who confirmed him,said Faye Wattleton, president of the Planned Parenthood Federation of America.
USA Today, September 19, 1990

''To George Bush and others who would like us to think David Souter is a blank slate, NOW asks, 'Who are you kidding?' '' said Molly Yard, president of the National Organization for Women. She described Souter as ''almost neanderthal.'' NOW plans a ''Stop Souter'' rally Friday on Capitol Hill. National Abortion Rights Action League's Kate Michelman said Souter has to be rejected because he would not fully endorse a constitutional right to privacy - including the right to reproductive choice.
USA Today, September 19, 1990

"For the first time in history, the Supreme Court is on the brink of taking away a fundamental right: the right to choose," said Kate Michelman, executive director of the National Abortion Rights Action League. Her group urged the committee to "safeguard the health and lives of millions of American women by withholding their consent."
The Toronto Star, September 18, 1990

"He hasn't said what he thinks about the most important issue facing women today," said Donna Lenhoff, legal director for the pro-choice Women's Legal Defense Fund, as the hearing wrapped up yesterday. "We are very, very concerned."
The Toronto Star, September 18, 1990

In August of 1990, former Reagan nominee Robert Bork wrote an editorial in the New York Times that displayed optimism about Souter’s conservative temperament. He wrote:

The early signs about Judge David Souter are encouraging. He seems not to confuse judging with his own moral and political sympathies. If that proves to be so, he most certainly should be confirmed. If he is, the third branch of our Government will be well on its way to the function prescribed for it by the Constitution. Both our right to self-government and our liberties that the Constitution removes from majority rule will be fully protected.

Conservative groups also had their reservations about Souter, which ultimately turned out to be correct. Howard Phillips, chairman of The Conservative Caucus, said he was opposing Souter because of his service as a director of two New Hampshire hospitals that allow abortions. He also alarmed conservative senators. Senator Charles Grassley, an Iowa Republican, declared in disgust that his responses were those of a ''judicial activist'' (a judge who tries to legislate from the Bench).

Souter's Senate confirmation hearings went through without the future justice answering a single question about how he might decide an abortion case. It took him actually sitting on the Supreme Court to find out where he really stood.

As we now know, Souter ended up being an ardent friend of pro-abortion forces. Souter was a joint author of the most prominent abortion decision since Roe v. Wade, 1992’s Planned Parenthood vs. Casey. In that case, the majority opinion found that regulations on abortion would be unconstitutional if they imposed an“undue burden” on a woman’s right to an abortion. In that opinion, Souter wrote, “Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding.”

Souter has also been on the majority side of cases that upheld racial quotas in university admissions, banned the Ten Commandments on public property, struck down state sodomy laws, and a recent controversial case that reaffirmed the use of eminent domain by local governments to seize private property.

In the coming weeks, you will hear fiery rhetoric about how Judge Roberts is going to dismantle a woman’s right to an abortion. You will hear how he has a poor record with regard to civil rights. In the end, only one person knows how John Roberts will cast his vote as a Supreme Court Justice, and that is Judge John Roberts. For conservatives’ sake, let’s hope he holds his apparent conservative credentials dear.