Judge John Roberts: A Review

Wednesday, July 20, 2005

President Bush has nominated Judge John Roberts of the D.C. Circuit Court of Appeals for the vacant Supreme Court position. While his views and opinions may be questioned, he is certainly qualified for the position. He has argued 39 cases before the Supreme Court in the public and private sector, winning 25 of them. He is regarded by some as the finest oral advocate to come before the Supreme Court in the last 20 years. Judge Roberts is a member of the Republican National Lawyers' Association and the National Legal Center For The Public Interest (Serves on the Legal Advisory Council). He also has stated to the Senate Juciciary Committe that he regularly participates in press briefings sponsored by the Washington Legal Foundation.

Here's a brief look at his biography:
*Born in Buffalo, Ny 1955, graduated magna cum laude from Harvard Law School
*1979-1980-clerk for Judge Henry J. Friendly (2nd Circuit Court of Appeals)
*1980-1981-clerk for Associate Supreme Court Justice William H. Rehnquist
*1981-special assistant to Attorney General William French Smith
*1982-associate counsel to the President in the Office of White House Counsel
*1986-1989-Associate with law firm Hogan&Hartson
*1989-Principal Deputy Solicitor General
*1993-partner with law firm Hogan&Hartson
*July 19, 2005 to present-Judge D.C. Circuit Court of Appeals

While certainly qualified for the position, it is the rulings and opinions of Judge Roberts that raises some questions about his nomination.

Judge Roberts was co-author of the governments amicus brief in the case Rust v. Sullivan. In this case Roberts, on behalf of the government, argued for the gag rule which would prohibit family planning programs who receive federal aid from giving any abortion-related counseling or other services. This disallowed such clinics to counsel clients about abortion or even refer them to places where abortions are preformed. In his brief Roberts argued "we continue to believe that Roe was wrongly decided and should be overruled...The Court's conclusion in Roe that there is a fundamental right to an abortion...finds no support in the text, structure, or history of the Constitution." The case had nothing to do with Roe v. Wade and was a clear indication of his views of precedent. It is worth noting here that the Supreme Court upheld the gag rule but on the grounds that the rule itself was not unconstitutional, there was no reference to Roe v. Wade.

Roberts also co-authored the government's amicus brief in the case Bray v. Alexandria Women's Health Clinic. The brief argued that protesters from Operation Rescue who blocked women from entering the clinic were not engaged in a conspiracy to deprive women of equal protection.
The Supreme Court accepted the argument 5-1-3. Justice Souter, in his dissent, wrote:

"It is obvious that petitioners' conduct was motivated "at least in art" by the invidious belief that individual women are not capable of deciding whether to terminate a pregnancy, or that they should not be allowed to act on such a decision. Petitioners' blanket refusal to allow any women access to an abortion clinic overrides the individual class members' choice, no matter whether she is the victim of rape or incest, whether the abortion may be necessary to save her life, or even whether she is merely seeking advice or information about her options. Petitioners' conduct is designed to deny every women the opportunity to exercise a constitutional right that only women posesses. Petitioners'conspiracy, which combines massive defiance of the law withe vialent obsturction of the constitutional rights of their fellow citizens, represents a paradigm of the kind of conduct that the statute was intended to cover."
A year after this ruling by the Supreme Court, Congress enacted the Freedom of Access to Clinic Entrances Act (FACE) in an effort to protect women and health care workers.

As Solicitor General, Roberts was the lead counsel for the government in the Supreme Court case Lujan v. National Wildlife Federation. Citizens had brought the case before the court seeking to enforce environmental protections due to the opening of 4,500 acres of public land for mining. The plantiffs argued that they would be "injured" by decision to open the land to mining. Roberts argued that the plantiffs had no right to file claims due to the fact that they had not presented sufficient proof of the impact of the government's actions on them.

Roberts was on the losing end of a 1992 amicus brief which he co-authored on behalf of the government in the case Lee v. Weisman. The brief was in support of letting public high schools include religious activities in their graduation programs.

Also as Solicitor General, Roberts authored the government's Supreme Court brief in the case Burns v. United States. William Burns was convicted of government theft and attempted tax evasion, he agreed to a plea bargain with the government for a sentence of 30-37 months. At sentencing, however, the judge sua sponte issued a 60-month sentence. The Court ruled 5-4 in favor of Burns with Justice Marshall, Blackmun, Stevens, Scalia and Kennedy stating:
"In our view, it makes no sense to impute to Congress an intent that a defendant have the right to comment on the appropriateness of a sua sponte departure but not the right to be notified that the court is contemplating such a ruling... Such a reading...renders meaningless the parties' express right. The Government's construction of congressional "silence" would thus render what Congress has expressly said absurd."
Roberts also co-authored a brief agruing that the 1989 Flag Act did not violate the First Admendment. The government brief argued that the Court should treat flag burning like obscene words and defamatory statements and allow the government to ban it for the common good. The Supreme Court rejected the argument and ruled 5-4 that the Flag Act was unconstitutional.

In private practice Roberts represented Toyota Motor Manufacturing, Kentucky, Inc., in their sucessful petition to the Supreme Court. The petition argued that a worker with carpal tunnel syndrome is not disabled such that he/she is entitled to accomodations at work under the Americans with Disabilites Act. Ella Williams, and automobile assembly line worker, was fired because she could no longer preform her duties due to the carpal tunnel syndrome she aquired while working at the plant.

Roberts also was the attorney for Fox Television in the case Fox Television Stations, Inc. v. Federal Communications Commission. In this case Fox won its challenge to the federal government's ownership and cross-ownership rules. This case is too much to get into but we all see the effects of Fox Television and Rupert Murdoch's ownership of television, print, and radio news which this case made possible.

Of all these rulings and briefs, I believe the most disturbing and revealing cases involving Judge Roberts are the cases he has been involved in during the 20 months he has served as a Judge on the D.C. Circuit Court of Appeals.

Last October in the case Hedgepeth v. WMATA, Judge Roberts upheld the arrest, handcuffing and detention of a 12-year-old girl.

In the 2003 case Rancho Viejo v. Norton, Judge Roberts wanted the full D.C. Circuit to reconsider a panel's decision that upheld a Fish and Wildlife Service regulation protecting the Arroyo Southwestern Toad under the Endangered Species Act. Roberts stated there could be no interestate commerce rationale for protecting the toad. He was quoted saying: "[the toad] for reasons of its own lives its entire life in California."

Last June, Roberts was on the panel that supported the Bush Administration in a case brought to the court by veterans of the first Gulf War. The soldiers were captured and tortured by the Iraqi government and were trying to sue the Iraqi government for damages. They won a settlement of nearly $1 billion in the district court. After the fall of Saddam in 2003, the administration claimed the government of Iraq was no longer in existence and therefore should not have to pay damages. The case is in appeal before the Supreme Court.

Judge Roberts was one of the dissenters in a 5-3 denial of a petition for a rehearing en banc filed by the Bush administration in efforts to aviod releasing records relating to Vice President Dick Cheney's energy task force. This was the fourth such denial by a judicial panel. The Supreme Court, at the urging of the administration, agreed to review the case, which it sent back down to the Court of Appeals in June of 2004.

In the most recent decision, Judge Roberts was on the 3-judge panel (1-Regan judge, 1-Bush I judge, 1-Bush II judge) which ruled last Friday that the 1949 Geneva Convention governing prisoners of war does not apply to al-Qaida and its members, thus giving no rights to the 520 detainees at Guantanamo Bay.

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