Judge Roberts, right for the left

Author: ANDREW CARNABUCI ’06

John Roberts is the best thing that has happened to the left in the past five years. The nomination of Judge Roberts as Chief Justice of the U.S. Supreme Court amounts to a four-month-early Christmas present from President Bush to liberal America.

This seems largely at odds with the media coverage of late. The pro-choice group NARAL has aired a number of anti-Roberts TV ads, and MoveOn.org's newsletter blasts Roberts as a "far-right lawyer and corporate lobbyist." The mysteriously still-extant JohnKerry.com Web site demands "to know the truth about Judge Roberts' record."

Well, now that the senate confirmation hearings are in full swing, the truth is known, and it is good. The first issue which was cause for concern over Roberts was his position on abortion. In response to Senate questioning, Roberts affirmed that precedent played a tremendous role in the American legal system, and was vital to maintaining "predictability, stability and legitimacy." In this case, precedent amounts to the federal sanctioning of abortion in 1973's Roe v. Wade, and a ringing reaffirmation of it in 1992's Casey v. Planned Parenthood. Further questioning revealed that Roberts believed that the principle of stare decisis would apply, meaning that the Roe and Casey rulings would stand.

Further, Roberts assuaged the fears of civil libertarians by echoing justice William O. Douglass' majority opinion in 1975's Griswold v. Connecticut, affirming that the right to privacy does exist in the penumbras of the First, Fourth and Fifth Amendments to the Constitution. When questioned by Vermont's own Patrick Leahy about presidential authorization of the use of torture, Roberts responded that not even the President is above the law.

These responses, in and of themselves may not elicit joyous yelps from liberals, but they need to be viewed in a historical context. In the past 50 years, there has been a significant trend in Supreme Court appointments by Republican presidents. Many justices­ chosen by Republican presidents and approved by Republican congresses­ have a propensity to, once on the bench, exhibit radical ideological shifts leftward. Behind the security of a lifetime appointment, they engage in political mutinies.

The first of these justices, Earl Warren, was appointed to Chief Justice of the Supreme Court in 1953 by Republican President Dwight Eisenhower. Warren had already been the three-term Republican governor of California, and had been instrumental in the call for, and execution of, Japanese internment. Earl Warren seemed as Right as they come. When he stepped up to the office of Chief Justice, however, he lead perhaps the most liberal Supreme Court in American history. Among his landmark rulings were Brown v. Board of Education, Griswold v. Connecticut and Miranda v. Arizona, which abolished segregation, affirmed the right to privacy and established that the police needed to inform criminals of their constitutional rights, respectively.

One justice is not a trend. In 1970, Republican president Richard Nixon nominated Harold "Harry" Blackmun to the Supreme Court. Blackmun himself had been a lifelong Republican. Once on the bench, however, Blackmun wrote the majority opinion in Roe v. Wade. Towards the end of his career he also became a vigorous opponent of the death penalty, declaring famously in 1994 that he "no longer shall tinker with the machinery of death."

Two justices may be a coincidence, but they are not a trend. In 1987, Republican president Ronald Reagan nominated Anthony Kennedy to the Supreme Court. Kennedy, a lifelong Republican and practicing Catholic, might have seemed, at the time, a step in the wrong direction for gay rights activists. This could not have been further from the truth. Kennedy consistently sided against discriminatory laws during the 1990s culminating in his authoring the majority opinion in the 2003 landmark case Lawrence v. Texas, in which the court struck down a Texas law that prohibited homosexual sodomy and opened the door to gay marriage. Kennedy's liberalism on the court became so extreme that the far-right activist group Focus on the Family's James Dobson called him "the most dangerous man in America," called for his impeachment and alluded to his assassination.

Three justices in the past 50 years might just qualify as a trend. No one can know how the Roberts court will evolve at this point, but there are certainly some good reasons for the left to be optimistic.