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CQ WEEKLY
July 25, 2005 – Page 2074

Craig Crawford’s 1600: A Risky Bet on Silence

Social conservatives face an unknown danger in John G. Roberts Jr. He is missing in action on their hot-button issues. On abortion, the death penalty, prayer in school, same-sex marriage and displaying Christian icons in public places, there is only his record as a litigator to examine — and in his 2003 Senate confirmation hearing for the federal appeals court in Washington, he pointedly distanced himself from any positions he advocated for his clients.

Indeed, social conservatives are the ones who should be pushing for Roberts to answer specific questions before he takes a seat on the Supreme Court. They are the ones who historically get burned by stealth nominees. The previous two Republican presidents — Ronald Reagan and George Bush — nominated three justices who have sorely disappointed right-wingers: Sandra Day O’Connor, Anthony M. Kennedy and David H. Souter.

The jury is still out on Roberts, but so far there is little to suggest that he is a passionate ideologue of any stripe. He all but said so before the Senate Judiciary Committee two years ago:

“In my review over the years and looking at Supreme Court constitutional decisions, I don’t necessarily think that it’s the best approach to have an all-encompassing philosophy.”

Unless Roberts was being disingenuous, that kind of talk is more in line with O’Connor-Kennedy-Souter thinking than with the court’s ideological bomb-throwers, Antonin Scalia and Clarence Thomas. Roberts has studiously avoided political causes and groups that might tip his hand. He is not, as many news organizations first thought, a member of the ultra-conservative Federalist Society.

If Roberts gets on the court, it should not take long to find out where he stands on high-impact social issues. He will sit in judgment on four death penalty cases, and cases on abortion, assisted suicide and gay rights are also on the docket. But right now his record and legal career offer no clues about his thinking.

While religious conservatives are taking it on faith that President Bush has delivered an ally for the Supreme Court, you have to wonder why they are so sure. This president’s record of deeds for their cause is thin, even though he has their rhetoric down pat.

For starters, look at how Bush backpedaled on his repeated calls for a constitutional amendment banning same-sex marriage. Despite his tough talk, this White House has not taken a significant step toward making that happen. Faith-based initiatives in federal programs have not taken hold to the extent promised. Even Bush’s efforts at restricting the scientific use of stem cells are seen as too compromising by some opponents.

Given this record on their issues, perhaps social conservatives should be exercising the most aggressive congressional oversight of this administration. Yet many conservatives have bought into the White House strategy of having Roberts say as little as possible, and thereby avoid giving Democrats firepower to oppose him.

Some anti-abortion activists are worried. “Supreme Court Nominee Roberts’ Position on Abortion Is Unknown” was the headline on ProLifeBlogs.com, a clearing house for anti-abortion groups, within hours of Bush unveiling his choice last week.

Though it has been much reported that Roberts, as deputy solicitor general in the first Bush administration, signed a legal brief 14 years ago advocating reversal of the Roe v. Wade decision establishing abortion rights, advocates on that side are troubled by what he said about the case in his 2003 confirmation hearing. “The statement in the brief was my position as an advocate for a client,” he said, strongly suggesting that no one should assume to know his personal views based on those activities.

Roberts also seemed less than eager to attack Roe as an example of judicial overreaching. “I don’t think it’s appropriate for me to criticize it as judicial activism,” he said. “My definition of judicial activism is when the court departs from applying the rule of law and undertakes legislative or executive decisions.”

Statements such as that encouraged Senate Democrats to take it slow on triggering an all-out war against Roberts’ confirmation the last time, which should raise suspicion in conservative circles now. It would be dangerous for conservatives to take it for granted that the White House has some backroom assurance from Roberts that he would cripple or overturn Roe — or take hard-line positions on other social questions. Even if he gave such assurance, which would be as inappropriate as it gets for Supreme Court wannabes, he would be above reach, as a lifetime appointee, if it turned out he misled Bush’s vetting team to get the job.

The coming hearings will be the only chance for conservatives to get Roberts fully on the record, which might make him think twice about going a different direction once on the bench. If they think it’s cute and clever for him to stay off the record and befuddle liberals, where is the guarantee that liberals won’t get the last laugh?

Contributing Editor Craig Crawford is a news analyst for MSNBC, CNBC and “The Early Show” on CBS. He can be reached at ccrawford@cq.com.

Source: CQ Weekly
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