John Roberts will be confirmed as Chief Justice of the Supreme Court next week after successfully pretending to be freakishly unopinionated for the entirety of his confirmation hearing.
Roberts did not reveal his position on abortion rights, the death penalty, or any other of the most politically relevant issues of the day. In the face of this stonewall, and with his confirmation by a Republican-controlled Senate a virtual lock, two questions remain unanswered: What conclusions can be drawn about Roberts from the scant information available, and how should Democrats approach the confirmation vote to most improve their political position?
While Roberts has studiously and smartly avoided opening his mouth on so-called litmus test issues, such as abortion and privacy law, there is evidence which suggests he will adhere staunchly to a strong conservative ideology while on the bench. In documents released months ago, Roberts writings show him as a hard line opponent of affirmative action and women's rights. He has argued against equal pay laws and discrimination-free hiring practices.
In what should be a black mark on his record, he wrote that "some might question whether encouraging homemakers to become lawyers contributes to the common good." Another gem from Roberts came in a memo before Ronald Reagan was interviewed by a Hispanic publication. Roberts referred to Latinos as "illegal amigos." While Roberts and others have tried to brush off the last two comments as internal office jokes, with such a dearth of information on the man and his judicial views, the portrait painted by the few released documents is of a person somewhat less than committed to advancing the interests of minorities and civil rights in general.
One issue on which Roberts' views are clear is the case of military detainees in Guantanamo Bay. While he recently refused to answer confirmation questions regarding detainee rights, as part of the District of Columbia Court of Appeals, Roberts was on a three-judge panel which granted the Bush Administration the right to proceed with military tribunals and to deny detainees prisoner of war status.
The case above, Hamdan v. Rumsfeld, leads one to question Roberts' ethical disposition. Only six days prior to hearing a case in which the Bush administration was a party, Roberts met with several administration officials, including Alberto Gonzalez, Dick Cheney, Karl Rove, and President Bush regarding his potential nomination to the Supreme Court. Presented with an obvious conflict of interest, Roberts did not recuse himself from Hamdan v. Rumsfeld.
Hints of the depth of Roberts' conservative status and of his willingness to forego ethical concerns in favor of personal and political gain may be quieting Republican fears that yet another judicial nominee of a President Bush will shift left after his confirmation, as did Bush, Sr. nominee David Souter.
These factors should instill in Democrats the resolve to stand united against Roberts. While his silence on controversial issues has made the filibuster politically impossible, Democrats can still send the message that they will not roll over on Bush's imminent second Supreme Court nomination.
With Republicans polling dismally and public opinion in line with Democratic positions on many important issues, particularly the war in Iraq, the economy, and even abortion rights, Democrats should take a page out of the Republican playbook. They should stop trying to get along with their right wing colleagues and instead form an opposition positioned to crush them in the long term.
