The Ambiguous Mr. Roberts
PRESIDENT BUSH’s nomination of Judge John Roberts to the U.S. Supreme Court has caused something just a little short of panic on the left. The day after the announcement, the New York Times told its readers that Roberts and his wife, Jane Sullivan Roberts, are “devout Catholics.” The following day, a front-page headline proclaimed that Roberts’ life is “rooted” in “faith,” and Times readers later learned that the Robertses had “joined a church in Bethesda to follow their priest, Msgr. Peter J. Vaghi, who was well known in the Washington area as an advocate of Catholic orthodoxy and an opponent of abortion.” More intrepid reporting in the Times revealed that Roberts is a Republican and also a man, a fact that caused Justice Sandra Day O’Connor to express disappointment that her proposed successor would not also be the beneficiary of affirmative action.
Meanwhile, the Washington Post devoted its energies to trying to determine whether Roberts had ever been a member of the Federalist Society, a subject the Post found far more interesting than the communist affiliations of officials in those presidential administrations of which it approved. At the time of this writing, what the Post had determined was that Roberts was listed in a Federalist Society directory from 1997 to 1998, even though a White House spokesman told the Post that Roberts “has no recollection of ever being a member” of the society.
None of this reporting was designed to help the readers of the Times and the Post rest easy. In fact, the day after the nomination, the Times opined that, if Roberts “is a mainstream conservative, in the tradition of Justice O’Connor, he should be confirmed. But if on closer inspection he turns out to be an extreme ideologue with an agenda of stripping away important rights, he should not be.” By “important rights,” of course, the Times essentially means abortion, the suppression of Christianity, and “gay rights.” Unfortunately, the fact that the Times is already worried that Roberts may be an “extreme ideologue” tells us more about how the Times views the tens of millions of Americans who vote Republican and go to church than it does about Roberts.
What the reporting in the Times and the Post actually shows is that very little is known about how Roberts views the most contentious legal issues of the day. Such a bland public record suggests either that Judge Roberts recognized early on that his extremely impressive legal credentials might one day propel him to the Court, and he desired to avoid the fate of Judge Bork before getting there, or that he has a cautious nature unlikely to produce change on the Court.
In the absence of a strong public record, people on all sides of the debate were reduced to reading the sort of tea leaves the Times and Post kept busy reporting. Those tea leaves could be read in various ways. In his confirmation hearing for the D.C. Circuit judgeship, Roberts told the Senate that Roe v. Wade is “more than settled” law. While working in the George H.W. Bush administration, however, Roberts signed a brief expressing that administration’s view that Roe v. Wade should be overturned. In addition, his wife has served as an officer and board member of Feminists for Life, which is committed to overturning Roe v. Wade and providing legal protection to the unborn.
As David Kirkpatrick reported in the July 22 New York Times, the White House has been waging a campaign for at least a year to convince conservatives that Roberts is reliable, based on “personal testimonials about Judge Roberts, his legal work, his Roman Catholic faith, and his wife’s public opposition to abortion.” Kirkpatrick also broke the news that Roberts’ parish priest is against abortion, which caused Austin Ruse, president of the Culture of Life Foundation, to tell Kirkpatrick, “For people like me who are reading the tea leaves, it is another marker that we can breathe easy.”
The desire to read tea leaves is understandable, given the Supreme Court’s transformation from the chief court of what Alexander Hamilton termed “the least dangerous branch” to what it is today: a never ending Constitutional Convention. Pace Mr. Ruse, however, none of us will really be able to “breathe easy” until Roberts is confirmed and actually proves that he is the sort of “extreme ideologue” the Times fears.
If he is, Bush will deserve immense credit for nominating the type of Supreme Court justice he promised, in addition to the credit he already deserves for ignoring the many public (and no doubt private) calls to nominate someone on the basis of race or sex. But if Roberts really is “a mainstream conservative, in the tradition of Sandra O’Connor,” Bush will have demonstrated definitively that all conservatives can ever expect from the Republican Party is betrayal.
This article first appeared in the September 2005 issue of Chronicles: A Magazine of American Culture.