ジョン・ロバーツ氏連邦最高裁長官指名についての社説

The Washington Post
Editorial
A Nominee for Chief
Tuesday, September 6, 2005; A24

PRESIDENT BUSH lost no time in naming a successor for Chief Justice William H. Rehnquist. If confirmed, Judge John G. Roberts Jr. will bring the same virtues to the job of heading the country's judiciary as he would have brought to the job of associate justice. A highly regarded former appellate lawyer and current appeals court judge, he is a modest, smart lawyer who, unlike some of the president's judicial picks, is generally well regarded across party lines. Mr. Bush deserves credit for acting with dispatch. The Senate should do so as well and, giving a full airing to the issues, should make a point of voting on the nomination before the court reconvenes in October.

In most respects, the change in position ought to signify little in terms of how senators regard Judge Roberts. The difference between the chief justice and the other members of the court, after all, is largely administrative, not substantive; all justices have only one vote. Judge Roberts is, to be sure, on the young side for the job of chief. At 50, he will have, if confirmed, the odd distinction of being the youngest member of the court he heads. On the other hand, his easy manner and collegiality ought to serve him well.

Yet his nomination as chief justice nonetheless raises the stakes in the discussion of what Judge Roberts actually believes -- a subject about which a great deal more has been said than is really known. Liberal groups that feared what a Justice Roberts might do can only fear a Chief Justice Roberts all the more. The hearings will provide an excellent opportunity for the Senate Judiciary Committee to explore -- and for Judge Roberts to address -- a raft of important questions: What is his attitude toward what is called stare decisis , the doctrine of generally letting past cases stand even if wrongly decided? How does he regard the balance of power between the federal government and the states, an ongoing debate in which a new justice could play a dramatic role, either constructive or unfortunate. What does he believe about privacy rights?

Documents from Judge Roberts's service in the Reagan administration -- in the Justice Department and in the White House counsel's office -- have raised fears that he might harbor reactionary views on a range of civil rights questions. Some of this is overblown; opponents have tried to make controversy out of reasonable positions Mr. Roberts took against policies few still advocate today. On the other hand, Judge Roberts opposed changes to the Voting Rights Act that had broad bipartisan support, as well as affirmative action programs and the proposed Equal Rights Amendment. He seemed deeply suspicious of federal review of state convictions. He seems to have objected to decades of Supreme Court rulings restricting the role of religion in public life. Judge Roberts was quite young when these memorandums were drafted, and his views may have evolved as he matured. Which part of this record as a young lawyer does he stand behind now, and which part does he not? All of these questions take on a greater sense of importance -- at least symbolically -- with Judge Roberts now nominated to be chief.

In one critical respect, however, moving Judge Roberts to the chief's slot may actually reduce his impact on the court's ideological balance. Chief Justice Rehnquist, unlike Justice Sandra Day O'Connor, was not often a swing vote on the court. In replacing him, Judge Roberts will be very unlikely to move the court substantially to the right. He would not have to prove all that surprising to move it to the left on certain issues.

This fact, in turn, puts a heavy premium on Mr. Bush's choice regarding a new replacement for Justice O'Connor -- whose decision to stay on the court until a nominee garners confirmation is proving invaluable at a delicate transitional moment. Before nominating Judge Roberts, Mr. Bush consulted widely and emerged with a candidate Senate Democrats have -- by and large, anyway -- treated with respect. As he once again considers a nominee to replace Justice O'Connor, Mr. Bush would do a public service by consulting widely and meaningfully.

The New York Times
Editorial
September 6, 2005
John Roberts's Rapid Ascension

President Bush surprised many with his swift decision to nominate Judge John Roberts Jr. to be the next chief justice of the United States. If Mr. Bush thought Mr. Roberts had already impressed both the public and the Senate with his intelligence and sincerity, he figured correctly. But if he regards the judge as a known commodity whose confirmation should be a shoo-in, he is wrong. The Senate did not have enough information to make an informed judgment about Mr. Roberts when he was the nominee for just one of the nine seats on the court. Now it simply becomes more important than ever that he be questioned thoroughly about his views.

Besides his long and stellar résumé, Mr. Roberts, who was appointed to the United States Court of Appeals for the District of Columbia Circuit less than two and a half years ago, has an extremely short and thin record of actual decisions. Those two attributes may be equally desirable for a Supreme Court nominee these days. The résumé attests to his right to be considered, and the lack of a real judicial record makes it hard for potential critics to guess how he might rule on controversial issues.

Like the president, this page worries about activist judges who might use the Constitution as a cloak for their desires to remake society in the mold of their own political preferences. Unlike Mr. Bush, we believe the record now shows that most of those jurists are conservatives, who strike down laws that do not fit their political philosophies or their extremely narrow view of governmental power.

The Senate has a duty to find out whether Judge Roberts has that kind of mind-set. There are troubling hints that he may. If the coming confirmation hearings were important before, they now become crucial. The chief justice is in many ways positioned to have more long-term influence over the nation than any other person. Given a lifetime appointment, Mr. Roberts, 50, could lead the court through the administrations of a half-dozen presidents.

The Bush administration could make the Senate's job easier by handing over all the documents Mr. Roberts prepared when he worked for the administrations of Ronald Reagan and George H. W. Bush. And when Judge Roberts is questioned at his confirmation hearing, he should speak candidly and at some length about his views on important legal issues and precedents. The president could also help by giving the country a fuller idea of how he intends to shape the court. Some Democrats have urged that he make his second nomination, for the seat occupied by Sandra Day O'Connor, before the Senate takes up Judge Roberts's nomination. That seems reasonable. Chief Justice William Rehnquist, who died on Saturday, was a very conservative jurist, and from what we know about Judge Roberts, it is clear that President Bush has nominated a very conservative man to take his place. It is also important to know the president's plans for filling the seat held by the more moderate Justice O'Connor.

USATODAY
Editorial
Posted 9/5/2005 9:41 PM
How would Roberts, as chief justice, affect you?

By all accounts, John Roberts is the kind of guy you might want your daughter to bring home for dinner: brilliant, personable, possibly destined for greatness. Even the sternest father — if he's not too liberal — would probably grant nodding approval, as the Senate is likely to do in the next few weeks, seating Roberts on the Supreme Court.

The positive reaction to Roberts since President Bush first nominated him to the court in July undoubtedly contributed to Bush's decision to choose him Monday to succeed William H. Rehnquist, who died Saturday after nearly 19 years as chief justice.

But as impressive as Roberts has appeared, the most important question about him remains largely unanswered: How would a Chief Justice Roberts affect the country? As the youngest chief justice since 1801, Roberts, 50, would be a potent influence on society for a generation or more.

Would he, for instance, vote to reverse existing law on abortion or, more sweepingly, the right to privacy? His record suggests he might. Would he limit Congress' ability to protect the environment, public health and civil rights? That, too, is open to question.

The Senate Judiciary Committee will plumb for answers in hearings that may begin as early as Thursday, and it needn't linger long on basics. Roberts easily surpasses the threshold qualifications for justices.

By all accounts, he is a brilliant lawyer with a forceful intellect suited to the court. The American Bar Association calls him "well qualified."

Politically, he's conservative but not an outspoken ideologue, with little history of brash pronouncements. But which of the several sharply opposed conservative camps he falls into is in doubt, and the difference stands to affect every American.

Roberts' public record — inconclusive but provocative — raises questions whether he prefers limited government and cautious change, or whether he is an activist who would seek to overturn important Supreme Court precedents and legal protections:

Right to privacy. In memos written when he was in the Reagan administration, he disparaged the notion that there is a constitutional right to privacy. He wrote approvingly of the dissent in the landmark 1965 case that firmly established that right and overturned state laws against birth control. Reversing that decision would reopen the door to government meddling in the most private aspects of life, again criminalizing abortion, gay sex, even contraception.

Abortion. As deputy solicitor general for the first President Bush, he signed a government brief urging reversal of Roe v. Wade, the 1973 decision that state laws banning abortion were unconstitutional. The court has since reaffirmed that decision.

Civil rights. Roberts argued for standards that would make it easier for school districts to evade desegregation orders. He also disparaged affirmative action — still sanctioned by the court in some circumstances — as "recruiting of inadequately prepared candidates" and argued that it is unconstitutional. That record raises questions about whether he would restrain the ability of Congress to help those victimized by discrimination.

Powers of Congress. Roberts parted company with the majority of conservative judges on his appeals court two years ago to take a swipe at the constitutional basis of the Endangered Species Act. The narrower interpretation he seemed to suggest could also limit the reach of federal laws regulating health, safety, civil rights, commerce and the workplace.

Freedom of speech. He argued that a federal law prohibiting flag burning did not violate the First Amendment, even after the Supreme Court had already declared a nearly identical state law unconstitutional.

Freedom of the press. Roberts wrote a memo challenging the 1964 Supreme Court decision New YorkTimes v. Sullivan, a cornerstone of the freedom to report aggressively on public officials. He suggested reverting to an earlier standard that gave officeholders greater ability to prevail in libel suits.

Church-state entanglement. He argued for lowering the wall between church and state and allowing officially led prayers at public school graduations. He criticized the Supreme Court's decision in another school prayer case as "indefensible."

Women's rights. Roberts ridiculed the notion that women are subject to workplace discrimination or entitled to constitutional protection. He also argued for narrowing the government's ability to enforce the ban on gender discrimination in education.

Roberts' defenders point out that most of his statements challenging the legal status quo were made while representing either the interests of a private client or the political commitments of an earlier administration. They might not represent his personal views — and many are more than 20 years old.

Both assertions are accurate. Less defensible is that the Bush administration has spurned Senate requests for records later in Roberts career. Senate questioning will have to fill in those blanks.

Much will be made at the hearings of the doctrine that Roberts should not be asked to say how he might rule in cases coming before the Supreme Court. But that should not deter senators from demanding to know how he views issues more generally and cases already decided — and the standards he would use to overturn settled law.

To suggest that the Senate should simply ignore the impact Roberts would have on constituents is to suggest that it stick its collective head in the sand.

From Buffalo to Washington

1955-72: Born in Buffalo, N.Y.; grew up in Long Beach, Ind., son of steel-mill executive; attended Roman Catholic prep school.

1976-79: Graduated from Harvard College and Harvard Law School.

1980: Appointed clerk to Supreme Court Justice William Rehnquist, who became chief justice in 1986 and who died Saturday.

1981: Joined the Reagan administration's legal staff.

1986: Joined Washington law firm Hogan & Hartson.

1989: Joined George H.W. Bush administration as principal deputy solicitor general.

1993: Returned to private practice with Hogan & Hartson.

2003: Named to U.S. Court of Appeals for the District of Columbia.

2005: Nominated in July to succeed Justice Sandra Day O'Connor on the Supreme Court; nominated Monday to succeed Rehnquist.