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A six-pronged strategy for defeating Roberts

Although defeating Judge John Roberts, President Bush’s nominee to the Supreme Court, is an uphill climb for Senate Democrats and the liberal groups allied with them, the outlines of an anti-Roberts strategy have emerged.
Sen. Charles Schumer, D-N.Y., discusses Supreme Court nominee John Roberts with reporters Wednesday.Dennis Cook / AP
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Although defeating Judge John Roberts, President Bush’s nominee to the Supreme Court, is an uphill climb for Senate Democrats and the liberal groups allied with them, the outlines have emerged of a strategy to challenge, if not defeat Roberts.

Democrats and liberal groups will press Roberts on several fronts, using varied arguments, some short-lived and simple, others more substantive and subtle.

Here are the themes Democrats and liberal advocates were using as Roberts made his second day of courtesy calls to senators Thursday:

Argument One - GENDER: Roberts is male, unlike retiring Justice Sandra Day O’Connor.

Sen. Ken Salazar, D-Colo. released a letter he’d sent to President Bush Wednesday lamenting “that you have missed an opportunity to help create an America that includes women at all levels of our nation’s government.”

And when a female reporter asked Sen. Barbara Boxer, D-Calif. whether she thought it was regrettable that Bush had nominated what this reporter described as “just another white guy” instead of a woman, Boxer agreed that it was regrettable, although she added that commitment to women’s rights was more important to her than just the sex of a nominee.

Argument Two - IDEOLOGY: The ideological make-up of the court is fixed — and Bush is wrong to change it.

“Judge Roberts is no Sandra Day O'Connor,” said Sen. John Kerry, D-Mass., in an e-mail to his supporters Wednesday. “Last night we learned that President Bush wants to replace a woman who voted to uphold Roe v. Wade with a man who argued against Roe v. Wade, and that sends a clear signal that this White House remains bent on opening old wounds and dividing America.”

On each of these cases, decided by a 5-to-4 margin, the outcome might well have been different had Roberts sat in O’Connor’s place:

  • Stenberg v Carhart (2000): O’Connor joined the decision striking down Nebraska’s ban on certain abortions which involve dismemberment of the fetus.
  • Grutter v. Bollinger (2003): O’Connor wrote the decision upholding the use of racial preferences in the University of Michigan law school admissions department.
  • McCreary County v. American Civil Liberties Union (2005) The court, with O’Connor in the majority, held that display of the Ten Commandments in a county courthouse was a government promotion of religion.

Argument Three - EVASIVENESS: Roberts was evasive in his 2003 confirmation hearings to become a federal appeals court judge. He might try the same thing again. Sen. Charles Schumer, D-N.Y. used this argument Wednesday.

“I can’t think of another nominee other than (Bush appeals court nominee) Miguel Estrada who was less forthcoming in the questions when he was nominated to the D.C. court of appeals” in 2003, Schumer said. (Despite this, the Senate confirmed Roberts unanimously.)

Schumer — who stressed that he had not yet made up his mind on Roberts — criticized him for refusing to answer these questions which he posed to him in 2003: “What two current Supreme Court justices do you believe have the most divergent judicial philosophies? How would you characterize the judicial philosophies of each? Of the two you name, which justice do you anticipate you will more closely approximate and why?”

Roberts replied that it wasn’t his job to issue critical reviews of justices of the Supreme Court.

Reminded that Justice Ruth Bader Ginsburg refused to answer several questions during her confirmation hearings in 1993, Schumer brushed that off: “It was a different time” and she was “a consensus nominee.”

Cordial Roberts-Schumer meetingSchumer had what he called a “cordial” meeting with Roberts for 55 minutes Thursday afternoon and will have another meeting with him next week.

Schumer said they discussed the kinds of questions that senators will pose to Roberts during the confirmation hearings.

The New Yorker handed Roberts a list of 110 detailed questions about past Supreme Court decisions and constitutional law that Schumer intends to ask during the public hearings. Schumer said the list was “not inclusive.”

Roberts told Schumer that “he had ‘modesty in terms of a judge’s role, in terms of precedent and in terms of the legislature.’” Schumer said he expected the nominee “to fill in a little more detail” of this statement.

Asked if he thought he could nudge Roberts toward his views with this series face-to-face meetings, Schumer said, “He’s too smart a man with too much experience and too much confidence, frankly, that he’s going to be nudged because a senator says ‘you ought to think this way.’”

Argument Four - CONFIDENTIAL DOCUMENTS: Schumer and his allies say they must have the confidential memoranda that Roberts wrote while he served in the solicitor general's office in the first Bush administration.

The Bush administration didn’t turn over such memos during the Democratic filibuster that defeated Estrada and there’s no reason to think it will do so now in the Roberts struggle.

Roberts "came to the conclusion he would defer to the client in that regard,” Schumer reported, after his meeting with Roberts Thursday. The client in this case was the executive branch.

Argument Five - THE COMMERCE CLAUSE: According to Schumer, Sen. Edward Kennedy, D-Mass, and the liberal Alliance for Justice, Roberts’s interpretation of the Commerce Clause is so restrictive that it would cripple federal powers.

“To me, the number one issue is the Commerce Clause,” Schumer said.

The underpinning of the expansive federal government is this phrase in the Constitution: “The Congress shall have Power... To regulate Commerce… among the several States...."

The Commerce Clause is the basis for the Endangered Species Act and other laws that affect businesses and individuals every day from Anchorage to Atlanta.

It may turn out that the most important thing Roberts has written in his 25 years of lawyering and judging is a dissent — amounting to barely more than one page — in a case called Rancho Viejo LLC v. Norton, issued on July 22, 2003.

In it, Roberts questioned whether the Endangered Species Act of 1973 gives federal regulators the power to stop a housing development that might affect the survival of a species, the arroyo toad, which lives within the boundaries of one state, California.

The 'hapless toad' and the Constitution
How can it be, Roberts wondered, that “regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce… among the several States’”?

The issue here is the same one the Supreme Court addressed in the recent decision which undermined California’s medical marijuana law.

As his guiding stars, Roberts cited two decisions written by his former mentor, Chief Justice William Rehnquist: United States v. Lopez in 1995 and United States v. Morrison in 2000, which limited the reach of the Commerce Clause.

Schumer said the Lopez and Morrison cases were wrongly decided, but he added that someone who didn’t agree with him on that point would not necessarily be disqualified from serving on the bench.

Argument Six - GAY RIGHTS: Roberts, his adversaries predict, won’t have an expansive view of the Equal Protection and Due Process clauses of Fourteenth Amendment to the Constitution; therefore, he will be less inclined to support new definitions of gay rights.

Joe Solmonese, president of the Human Rights Campaign, a leading gay rights group, made this argument Wednesday.

“Bush said he would be nominating someone who wouldn’t ‘legislate from the bench,” Solmonese wrote in the gay magazine the Advocate. “Although this might sound reasonable at first, in fact… it’s code for judges who refuse to rule that the Constitution ensures equal protection for all.”

Prior to the court’s ruling in Lawrence v. Texas two years ago, the court had never held that the Equal Protection Clause encompassed gay rights.

Despite all this or because of it, conservatives such as James Dobson of Focus on the Family praised Roberts Wednesday. “Judge Roberts has a brilliant legal mind and his qualifications are impeccable,” said Dobson in a conference call with reporters. “Most importantly, we believe Judge Roberts will interpret the Constitution and not try to legislate from the bench, which has been the pattern in recent years.”