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September 14, 2005

As Judicial Novice, Roberts Must be Scrutinized

Janelle Ducott

      John Roberts is moving up in the world. Initially slated to replace moderate Sandra Day O'Conner on the bench, Roberts recently garnered the nomination of Chief Justice, following the death William Rehnquist. As Senate conformation hearings draw near and controversy surrounding the nomination heats up, we must wonder, who is John Roberts?

      Introduced by the Bush Administration as a mild mannered, charismatic, intellectual unlikely to become highly controversial, Roberts has earned criticism from the left regarding his historically conservative jurisprudence. This criticism may be warranted. Throughout his law career, Roberts has often taken up positions hostile to women's reproductive rights, civil rights, habeas corpus, affirmative action, gay rights, environmental protection, and civil liberties. Roberts has also argued in favor of denying rights to Guantanamo bay detainees and for the continued decline of federal power.

      So, how different is Roberts "The Lawyer" from Roberts "The Judge"? While his legal record clearly illustrates his conservative background, it is also worthwhile to note that if confirmed it is unlikely that Roberts would attempt to legislate a conservative agenda from the bench. Cass Sunstein, a law professor at the University of Chicago argues that Roberts appears to be a judicial minimalist, likely to adhere to precedent over his own moral compass, "Judge Roberts's opinions thus far are careful, lawyerly, and narrow. They avoid broad pronouncements. They do not try to reorient the law." Moreover, Roberts himself admitted that if nominated he would respect precedents of the court, including Roe v. Wade, assuming it is not proved that law was applied incorrectly.

      Rehnquist's death altered the atmosphere of Roberts' nomination. Unlike many of his predecessors, Roberts is still a veritable novice on the bench, having only two years of Circuit Court experience in the District of Columbia. While it is undisputed that Roberts has the leadership capacity to take up the position of Chief Justice, exactly how Roberts would approach the law is yet to be seen. Carl Tobias, a constitutional law professor at the University of Richmond Law School notes, "It's too early to tell. Some people believe that Roberts may be similar to Rehnquist in his jurisprudence, although that's not at all clear yet." One thing is certain, Roberts will be subject to strict scrutiny during the Senate confirmation hearings, as democrats and liberals alike attempt to determine Roberts' judicial tendencies. Sen. Edward Kennedy (D) of Massachusetts explains, "The chief justice is the most important judge in the country, with even more responsibility for the protection of the rights and freedoms of all Americans. Thus, John Roberts bears a heavier burden when he comes before the Senate."

      It is still too early to accurately predict Roberts' judicial style. As the former President Bush discovered in Justice Souter, Supreme Court nominees do not always fall in rank with the administration that puts them in power. However, we can likely expect scrutiny, particularly from the left, when Roberts goes before the senate.

Front Page (September 14, 2005)

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