From the moment the John Roberts nomination was announced, the media called it a done deal. NPR and the New York Times gushed over his humility, humor, and congeniality. With Roberts’s belief system barely mentioned, you’d think Bush had just nominated Mister Rogers.
In the wake of this media love fest, I keep encountering people who oppose everything Roberts has stood for, but see no use in trying to stop what seems his inevitable confirmation. But we can make a powerful impact by raising the discomforting truth that Roberts may be closer to a smiling Antonin Scalia. However the Senators vote-and it’s not foreordained, the more we raise key issues and principles, the more they’ll echo down the line around future nominations and policies.
Roberts is being hailed as the brilliant Harvard lawyer who gets along with everyone. He’s conservative, but reasonable. He doesn’t froth at the mouth. He barely barks. Unlike Bush’s three most recent Appeals Court appointees, he hasn’t led a right wing ideological charge. He’s being praised as a nomination Bush should be proud of.
We need to tell a different story, and do our best to get it into the media, the arguments raised by our elected representatives, and the awareness of our fellow citizens. The actual outcome will probably depend on a small group of Republican “moderates,” who tend to briefly question about Bush’s policies and choices, then toe the line on critical votes. But if they really demanded moderate appointments, or stood firm against the “nuclear option” power grab that threatens to end the filibuster, Roberts could certainly be defeated. Whatever the final vote, offering a critical perspective gives us the chance to help frame how Americans view this administration and what we can expect from future lifetime appointments to a court that’s our final arbiter of rights and governmental power. Settling for an appointment as regressive as Roberts invites Bush to nominate someone still worse for next round. Challenging him draws a line and invites our fellow citizens to stand up in other ways to this immensely destructive presidency.
How has a seemingly nice man like Roberts supported a politics of contempt for the voice of anyone but the wealthy and powerful? In a time when the Bush administration acts as if granted the divine right of kings, it’s troubling that Roberts defended Cheney’s right to refuse to name the corporate participants in his secret energy policy meeting. He advised Jeb Bush on the 2000 election, and denied being a member of the ultra-conservative Federalist Society, then turned up on the Society’s Washington steering committee. He’s argued that the Voting Rights Act can only be violated by intentional discrimination, saying laws that incidentally discriminate are ok. Most damning, Roberts just ruled that if this administration wishes to exempt someone from the Geneva Convention and international law, they have the absolute right to do so. The belief that a president can do whatever he chooses links this nomination, the Downing Street Memo and Plamegate in a common matrix of unaccountable power.
Roberts is also disturbingly loyal to dubious corporate interests, or at least to principles that allow these interests to run roughshod over ordinary citizens and communities. He argued that private individuals could not sue the federal government for violations of environmental regulations like the removal of mountaintops by West Virginia mining companies. He supported the rights of developers to ignore the Endangered Species Act. He denied the rights of workers injured over time as part of their jobs, supported criminal contempt fines to force the end of a strike, and helped a major car manufacturer avoid a recall of dangerous seatbelts.
Then there’s Roe vs Wade. People of goodwill can disagree about abortion, but overturning that decision would devastate the lives of women forced to bear unwanted children. Roberts has already argued, as Deputy Solicitor General, that “Roe was wrongly decided and should be overruled.” Pat Robertson endorsed him as one of his top favored choices. In the words of Tony Perkins of the ultra-conservative Family Research Council, Bush “promised to nominate someone along the lines of a Scalia or a Thomas and that is exactly what he has done.” It’s tempting to decide that Roberts is the best we can get, so we should simply accept him, lest we get someone worse. But that traps us in a continuous cycle of lowered expectations, until we accept anyone short of Attila the Hun. I’m not expecting Bush to nominate the next Thurgood Marshall. Even Sandra O’Connor, who everyone now praises, helped put Bush in office to begin with in a decision blasted by legal scholars for its contempt for constitutional precedents, including claims of the participating justices to support states rights. Given the Republicans’ current power, another O’Connor may be the most we can expect, but we have no obligation to accept a candidate as problematic as Roberts.
Instead of caving to fatalistic acceptance, we need to approach this nomination as an exercise in truth telling. We can talk, to whomever we have access, about what Roberts represents, and what a court in his image would mean for America. We can lobby our Senators to draw the line, knowing that the more they do, the more the media will question. We can hold up a vision of how America could be, while describing how profoundly our heritage of liberty and justice is being attacked. And then we can keep on, whatever the immediate result, so that we will not be faced with another Justice Roberts ten years down the line.
Paul Loeb is the author of The Impossible Will Take a Little While: A Citizen’s Guide to Hope in a Time of Fear, named the #3 political book of fall 2004 by the History Channel and the American Book Association, and of Soul of a Citizen: Living With Conviction in a Cynical Time See www.paulloeb.org