Waldlaw Blog

Thursday, August 18, 2005

The Scoop on Roberts

I've been asked by several readers to write a blog about Supreme Court nominee John Roberts. The reason I haven't posted about Roberts before is because I really don't know much about him. In fact, I believe he was chosen by George W. Bush and his handlers specifically because none of us know much about him. That said, I look at Bush and his other nominees for other posts and I can't help but assume the worst. And I was not comforted by the fact that he was in favor of overruling the Colorado statute precluding municipalities from providing protections to lesbians and gay men -- the Colorado amendment that he wrote against was so blatantly unconstitutional that any self-respecting constitutionalist would have had to oppose it. But so many other issues we're currently struggling with -- and struggling for -- are not so clear cut. Let me explain: The Colorado amendment said that a municipality -- such as Aspen -- could not vote to provide equality in employment, housing, etc. to its lesbian and gay citizens. In doing so, the amendment denied people who believed in principles of equality access to the democratic process. They (we) were precluded from passing laws that they (we) believed in and had enough votes to pass. This was the basis on which the amendment was thrown out. And it is a basis clearly grounded in the language of our federal Constitution. But let's look at affirmative action, or abortion, or the right to privacy in general. The language about access to the democratic process -- the right to petition our government for redress of our grievances -- is right in the Constitution itself. But try to find the word "privacy" in there, not to mention concepts such as abortion or affirmative action. They simply aren't there. So to ground these concepts in the Constitution requires creativity and a belief in our Constitution as a living document capable of adapting and changing with the times. And from everything I know about Roberts, he doesn't see the Constitution that way, any more than Scalia and Rehnquist do. So my take is: Roberts is probably an arch conservative who believes that the Constitution is to be interpreted as the Framers would have interpreted it back in the 1700's, and if you can't find it in the Constitution then it isn't constitutional law and the Supreme Court has no business ruling on it. (This is called "strict constructionism," for those of you who care.) This position helped us in Colorado, but it won't help on affirmative action, abortion, marriage equality or the myriad of other issues likely to come before the Court during the tenure of our newest Justice. We desperately need another legal -- if not political -- moderate on the Court. We need someone without strong, fixed views on the "correct" way to interpret the Constitution; we need someone who can play the role that Sandra Day O'Connor played of helping our polarized Justices talk to each other and find common ground. And I strongly doubt that John Roberts is such a person. Now, if we can just get Congress to act like our advocates, for a change.... Anyway, for a more in-depth and fact-based assessment of Roberts, go to People for the American Way's website on the subject, which can be found at: http://www.savethecourt.org/site/c.mwK0JbNTJrF/b.901293/k.7F49/Where_Does_Roberts_Stand.htm


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