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Will Roberts move left?
The ideological migration of other justices is instructive
- Bob Egelko, Chronicle Staff Writer
Sunday, September 4, 2005
Judging John Roberts from his record, his writings and the near- unanimous opinion of both supporters and opponents, the Supreme Court nominee is a dyed-in-the-wool conservative whose confirmation would tilt the court further to the right.
But is it conceivable that within Roberts' chest, waiting to emerge within a few years under the mysterious influence of serving on the high court, beats the heart of a closet moderate?
With Roberts' confirmation hearings coming up on Tuesday, it's worth noting that this ideological migration has happened to others. Consider Justice Sandra Day O'Connor, whom Roberts would succeed.
On abortion, O'Connor was quoted as telling President Ronald Reagan before he appointed her in 1981 that the practice was "personally repugnant" to her and an "appropriate subject for state regulation." She told the Senate Judiciary Committee at her confirmation hearing, "I'm opposed to it, as a matter of birth control or otherwise."
On the court in 1983, she wrote in a dissent that the framework of Roe vs. Wade, the 1973 ruling that legalized abortion, had "no justification in law or logic." In a 1986 opinion, she referred to Roe vs. Wade as "the court's unworkable scheme for constitutionalizing the regulation of abortion."
But in 1992, when a seemingly conservative-dominated court was again squarely faced with the question of whether the Constitution protects a woman's right to an abortion, O'Connor was part of a 5-4 majority that said yes -- observing that, after 19 years, a generation of women had come to rely on that right and that the legitimacy of the court was at stake.
Another member of that majority was Justice Anthony Kennedy, who had appeared ready to scuttle Roe three years earlier when he voted to give states broad authority to regulate abortion. The 1992 ruling was also signed by Justice David Souter, who had been opposed by abortion-rights groups at his 1990 confirmation hearings and had cast the deciding vote in 1991 to uphold federal regulations that prohibited doctors at federally funded family planning clinics from even mentioning abortion as an option.
O'Connor also had a conservative record on racial issues. In a 1989 ruling, which struck down a city's program of setting aside a percentage of its contracts for minorities, O'Connor said all racial classifications, whether they were meant to benefit blacks or whites, were equally suspect. Granting preferences based on "unmeasurable claims of past wrongs,'' she wrote, was anathema to "the dream of a nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement."
But in 2003, O'Connor, for a 5-4 majority, wrote a ruling that allowed a law school to consider applicants' race as one factor in admissions. "Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized," she said.
Meanwhile, Kennedy, a Reagan appointee with conservative credentials, became an unlikely hero to lesbians and gays -- and a pariah to his onetime admirers on the religious right -- when he wrote the two most important gay- rights rulings in the court's history. One, in 1996, overturned a state law that would have barred local anti-discrimination ordinances based on sexual orientation, holding that private moral objections to homosexuality could not justify unequal treatment. The other, in 2003, struck down laws against private sexual conduct between consenting adults.
Souter, who had been recommended to the first President Bush by an adviser as a "home run" for conservatives, soon became a member of the court's (relatively) liberal wing. Its leader, Justice John Paul Stevens, was a 1975 Gerald Ford appointee whose early record was far from liberal:
He led the conservative bloc in the 1978 Allan Bakke case that outlawed quotas for disadvantaged minorities at the University of California and wrote a dissent in another affirmative action case in 1980 in which he argued that racial preferences "foster intolerance and antagonism against the entire membership of the favored class" (a view that seems at odds with O'Connor's 2003 ruling, which Stevens endorsed).
Will we be making the same observations about Justice Roberts' drift to the left 5 or 10 years from now?
His record -- at least, as much of it as can be gleaned from incomplete government documents spanning a quarter-century -- suggests conservative roots at least as deep as those of Justice William Rehnquist, for whom he once worked as a law clerk. (Since he joined the court in 1972, Rehnquist's biggest apparent change has been to add gold chevrons to the sleeves of his robe after becoming chief justice in 1986).
While the court was re-examining its abortion doctrine, Roberts was preparing a brief for the first Bush administration in 1991 saying Roe vs. Wade should be overturned. If that argument can be discounted as merely representing his client -- and it's a position that Roberts, a high-ranking deputy, probably could have shunned if he had found it offensive -- it seems consistent with his writings as a Reagan administration lawyer a decade earlier, when he referred to the "tragedy" of abortion and urged appointment of judges who "respect the sanctity of innocent human life."
Perhaps most revealing was his reference in a 1981 memo to "the so-called right to privacy," a view that would align Roberts not only with the current court's two arch-conservatives, Justices Clarence Thomas and Antonin Scalia, but also with Robert Bork, whose 1987 Supreme Court nomination was derailed partly over his rejection of the court's privacy doctrine.
Privacy, a right first declared by the court in a 1965 contraception case, became the foundation of both Roe vs. Wade and Kennedy's 2003 ruling on sexual conduct.
On other rights-related issues, Roberts has expressed similarly conservative opinions. During the Reagan administration, he argued that Congress could prohibit judges from ordering busing for school desegregation and that proof of intentional discrimination should be required for Voting Rights Act violations, two views that did not become law.
In 1981, he wrote that affirmative action violates "the bedrock principle of treating people on the basis of merit" and that such programs have failed because they "required the recruitment of inadequately prepared candidates.'' He also referred disparagingly in a 1983 memo to states' efforts to address "perceived problems of gender discrimination."
The thread that seems to bind all these arguments together is Roberts' view of the limits on judicial power to step between the government and private citizens. Judges, he recently told the Senate Judiciary Committee in response to written questions, "do not have a commission to solve society's problems."
Two decades earlier, he questioned the propriety of federal court review of state criminal convictions and sentences, and suggested that the Supreme Court could lighten its caseload if it abandoned "the role of fourth or fifth guesser in death penalty cases."
During his two years as a federal appeals court judge, he has disavowed judicial authority to intervene on behalf of veterans seeking damages for torture in Iraq, a Guantanamo prisoner claiming rights under the Geneva Conventions, and a 12-year-old girl arrested for eating a french fry in a Washington rail station.
On the other hand, friends and colleagues of Roberts have described him as open-minded, willing to be persuaded and anything but an ideologue. At Hogan & Hartson, the bipartisan Washington law firm where he spent half of his professional career, Roberts represented not only business clients but also an environmental agency, an office defending a preferential voting system for native Hawaiians, a group of welfare applicants and at least one prison inmate. He also helped gay-rights lawyers prepare for the 1996 Supreme Court case that resulted in Kennedy's landmark opinion -- a task that Roberts surely could have declined if the cause had repelled him.
Roberts' record as a litigator in 39 Supreme Court cases, plus his statements about respect for legal precedent, has convinced one court observer that President Bush is in for an unpleasant surprise.
"I'm expecting Roberts to look a lot like O'Connor, much to the disappointment of some people in the administration," said Craig Bradley, a law professor at Indiana University and, like Roberts, a former Rehnquist clerk. He said the institutional tug at the Supreme Court isn't so much toward the ideological left as it is toward the center -- in the direction of upholding precedent.
Alan Morrison, a fellow Supreme Court litigator and a lecturer at Stanford Law School, said Roberts won't be driven by ideology.
"John Roberts is a very careful and good lawyer, and I think the facts (of each case) will matter to him," Morrison said.
Conservative commentator Bruce Fein, who worked with Roberts in the Reagan administration's Justice Department and has known him for 25 years, has a different view of the forces at work within the court and how Roberts will withstand them.
"I've talked with him for hours. His philosophy is pretty solid," Fein said. "I would be stunned if John ended up resembling a Justice Sandra Day O'Connor in his approach to constitutional interpretation."
The justices most susceptible to transformation, Fein said, are those who have not thought deeply or written extensively about judicial philosophy or the role of a judge. He said O'Connor came to the court with "relatively soft or uncrystallized ideas about the law" and had published just one article in a legal journal. By contrast, he said, Rehnquist and Scalia were prolific writers before their appointments, had well-defined views on the judicial role and haven't changed since taking office. Fein puts Roberts in the same category.
But one liberal commentator said the court itself can have a liberalizing influence.
"There's a certain romanticism about the court's role in American life, the ability of the court to be a moral beacon for the country, that drives justices to take progressive stands," said Los Angeles attorney Edward Lazarus, who clerked for the late Justice Harry Blackmun in 1988.
Blackmun may have been the clearest example of a right-to-left shift in recent decades. Universally viewed as a down-the-line conservative -- the "Minnesota Twin" of Chief Justice Warren Burger -- when President Richard Nixon appointed him in 1970, Blackmun wrote Roe vs. Wade three years later and gained the undying fury of the political and religious right. Blackmun also voted to uphold death penalty laws in his early years on the court, despite personal opposition to capital punishment, but became a death penalty abolitionist before his retirement in 1994, declaring that he would "no longer tinker with the machinery of death."
Blackmun "would often talk about it being the people's court," a reflection of the institution's effect on him, Lazarus said. He said the justice may also have dug in his heels, ideologically, in response to the attacks on him over the abortion case, a theme explored by New York Times reporter Linda Greenhouse in her recent book "Becoming Justice Blackmun."
Another liberal analyst, University of Chicago law Professor Cass Sunstein, scoffs at the idea of the court as a liberalizing institution and says the concept that justices change in office is both overrated and dangerous.
"It makes people think the stakes (in a confirmation) are much lower than they are," said Sunstein, like Lazarus a former Supreme Court clerk and the author of a book on the court, "One Case at a Time." With occasional exceptions, like Blackmun in his stance on the death penalty, he said, "they are what they are and they're not going to change."
In fact, some of the apparent shifts on the current court can be explained in ways that make the justices look more consistent:
-- O'Connor's early critiques of Roe vs. Wade were not absolute, instead suggesting a more limited right to abortion that the court eventually adopted.
-- Kennedy showed some sympathy for gay rights before his 1988 appointment by Reagan, in a 1980 federal appeals court decision that upheld the military ban on homosexual conduct but did not rule out constitutional protection for private sexual activity, the basis of his Supreme Court ruling in 2003.
One statistical study suggests that both Kennedy and O'Connor have stayed closer to the conservative camp than their high-profile opinions would indicate. Between 1994 and 2003, the Harvard Law Review found, Kennedy, followed by O'Connor, had the highest overall rate of agreement with Rehnquist.
Lee Epstein, a professor of law and political science at Washington University in St. Louis and coauthor of the forthcoming book "Advice and Consent: The Politics of Judicial Appointments," said justices usually reflect the philosophies of the presidents who appointed them, particularly in their first five to 10 years on the court.
Among the current justices, Epstein said, O'Connor has probably changed the most, with the 2003 affirmative action case being the strongest evidence of a liberal shift. But she said O'Connor still remains at the ideological center of the current court, to the left of Kennedy, based on their voting records. Further to the right are Rehnquist, then Scalia and Thomas. To O'Connor's left are Justice Stephen Breyer, then Souter and Justice Ruth Bader Ginsburg, and finally Stevens.
The chart varies a bit depending on which pundit you ask. Professor Arthur Hellman of the University of Pittsburgh puts O'Connor to the right of Kennedy, based on her record in the court's most recent term, including her dissent from a Kennedy opinion that barred executions of murderers younger than 18. Fein ranks Rehnquist to the right of Scalia, based on their opinions in criminal cases.
But the prevailing view seemed to be that Roberts -- at least at the outset -- would land firmly on the right side of the current court and fairly close to Rehnquist, his former boss. Based on his writings and judicial opinions, Epstein puts Roberts slightly to the right of the chief justice.
Where the 50-year-old nominee will line up in 5 to 10 years is anybody's guess. But Santa Clara University law Professor Gerald Uelmen says he's not likely to migrate leftward in the near future, for at least one reason: Roberts, once confirmed, will instantly become a candidate to succeed the cancer-stricken Rehnquist as chief justice.
"I'm sure the potential to be chief will be very much on his mind the first year on the court," Uelmen said. "That means he really can't antagonize the base that put him there."
Some justices defy expectations, some don't
E-mail Bob Egelko at email@example.com.
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by alfayoko2005 | 2005-09-10 09:08