Judge John Roberts: Mystery Man?

Judge John Roberts is an enigma, of sorts. The 50 year old Roberts has served, from all accounts honorably, on the Washington DC US District Court of Appeals for two years. Prior to that, he was what has been referred to as a “lawyer’s lawyer” and argued 39 cases before the US Supreme Court; 25 of them successfully. However, as his time on the bench has been rather limited, to date, his detractors (from both the right and the left) are uncertain as to what sort of Associate Justice he will prove to be.

Liberal environmentalists, such as Senior Legislative Counsel for Earthjustice Glenn Sugamelli, were upset (if not incensed) with Judge Roberts’ ruling regarding the fate of the Arroyo Toad, as it pertained to the Federal Endangered Species Act. The case, brought to the court by a developer, centered on the US Fish and Wildlife’s demand that the developer remove a fence from his property that was interrupting the movements of the endangered-species toad. Judge Roberts’ stated in his dissenting opinion that the Federal Endangered Species Act did not apply in this case, as the “hapless toad that, for reasons of its own, lives its entire life in California.” Roberts’ narrow ruling pertained to the ‘commerce clause’, which has been used for decades in both the creation and application of a variety of environmental laws. Roberts advised that no ‘interstate’ applications existed, as the toad exists in only California. Environmental activists have thrown down their gauntlets in front of him. Their toads are important!

Then, there is Senate Judiciary Committee member Ted Kennedy’s (one of 3 senators who voted against appointing Roberts to the DC Appeals Court in 2003) statement in a speech to the Senate chamber that Roberts’ nomination “raises questions about whether he would roll back a host of other laws protecting civil rights, workers' rights and even many of our federal criminal statutes.” Kennedy further stated that Roberts had opposed programs guaranteeing equal opportunity to workers (Kennedy didn’t specify what opposition), had argued to overturn abortion rights and also brought up Roberts’ dissent statement regarding the Arroyo Toad case. Kennedy further said: “Americans deserve to know if nominees will be on the side of justice and individual liberties, or if they will side with powerful special interests.” Translating Dem-speak, Kennedy’s statement means: “Are you going to vote on the side of the liberal Democrat leaders or with the conservatives? Are you going to be a good liberal Activist judge or a problematical Constructionist and Originalist?” Note: Even the Dems’ new heroine Justice Sandra Day O’Conner concurred with Roberts’ interpretation of the commerce clause. Hmmm. Kennedy had previously stated of O’Conner that she represents “the mainstream of conservative judicial thinking” and that “this is what the American people are expecting.” Whew! Considering your rather vilifying statements regarding Judge Roberts, your equal praise of Justice O’Conner (who sided with Roberts) seems like a tough one to justify, Senator Kennedy!

Another member of the judiciary committee, Sen. Charles Schumer, has drafted a list of 17 questions to ask Roberts; including those in which he advised he will demand that Roberts answer as to his stance on settled law (in Schumer’s question #14) and potential upcoming US Supreme Court cases (in his question #13). To demand the answers to questions of both settled law and how a SCOTUS justice will rule on cases not yet before the court is unprecedented. Even decidedly liberal Justice Ruth Bader Ginsberg was approved on her merits; not on her political leanings. The Democrat double standard continues!

Although it was expected that any President Bush nominee (short of another Justice Ginsberg or Breyer) would be fought by any and all on the left, a few on the right are not pleased with the Roberts’ nomination either. Of particular note, is conservative Ann Coulter who warns in her recent column: “SOUTER IN ROBERTS' CLOTHING”. President Bush #1’s nomination and subsequent appointment of Supreme Court Justice Souter was a complete disappointment and dismal failure for conservatives. Republicans had hoped that the court would be balanced with a conservative Souter. However, once installed as a SCOTUS justice, Souter almost immediately began voting with the court’s liberal contingent. Coulter points out the legitimate concern that many conservatives hold, with her statement: “Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever.” As he has been a judge for a very short time, Roberts has a very limited “paper trail”. So did Souter. Hence, the very real concern.

Beltway wisdom is that Roberts will be confirmed. If he is, I’m guessing that everyone will be holding their collective breath in anticipation of Roberts’ first ruling. Will he prove to be the as-advertised strict constitutional constructionist? Or, like Souter, will he decide that the US Constitution is a “living breathing document” and subject to changes by the highest court in the land? Most notably, on 23 June 2005 we saw what judicial activism brings. With what many have called the dissolution of the 5th Amendment, the US Supreme Court ruled that public “eminent domain” projects now include private projects. Cities, in concert with private developers, can now seize privately-owned citizens’ property; if they can increase their tax revenues with private developments. This SCOTUS decision is one that negatively impacts (unless one happens to be a major developer) all property owners—liberal and conservative alike. But, at this juncture, the potential Roberts’ confirmation remains in a “wait and see” holding pattern. In his forthcoming rulings, will Justice Roberts prove to be more conservative or liberal? But, one scenario remains certain. As with all Supreme Court justice appointees, the next Associate Justice appointment will affect and impact the country for decades to come. At this juncture, we can only hope and pray that he’s the right candidate.