July 20, 2005

Bush Nominates John Roberts

CNN reports that President Bush has nominated John Roberts to the Supreme Court.:

WASHINGTON (CNN) -- President Bush's choice of Judge John Roberts Jr. as the first Supreme Court nominee in 11 years has mobilized advocacy groups of all stripes, and early reaction indicates a partisan fight could be forthcoming. If confirmed by the Senate, the conservative Roberts would replace retiring Justice Sandra Day O'Connor, who gained a reputation as a moderate swing voter in her 24 terms on the nation's highest court. The conservative group Progress for America rallied in front of the Supreme Court building in Washington on Tuesday night, carrying signs reading "Confirm." A liberal advocacy group, People for the American Way, sent out 400,000 e-mails to supporters after the announcement, according to the group's president, Ralph Neas. The nomination of Roberts, a federal appellate court judge, pleased Republicans and prompted Democrats to vow a thorough review in the Senate

Ideally, the Supreme Court should be the interpreter of the law and any confirmation hearings would focus on the nominees legal credentials. However, the activism of the Supreme Court over the years has placed the focus on the nominees position on certain controversial issues. For example, will he help overturn Roe v. Wade? I am not sure where I fall on that issue personally. For the most part, I am probably pro-choice - yet, I consider abortion to be the wrong alternative in most cases.
The cynic in me would say that the reason the Democrats are so concerned about Roberts' position on abortion demonstrates that the right to an abortion is not firmly based in the Constitution. From a purely legal perspective, the right of privacy upon which Roe relies is not an explicit right granted in the Constitution or Bill of Rights. Roe v. Wade was arguably an example of the Supreme Court going beyond its stated role as the interpreter of the law. Rather, it could fairly be seen as an example of "legislating from the bench". However, the supporters of Roe do have a good point in that it could very easily be deemed to be an implied right based upon certain portions of the Bill of Rights.
Over the next few weeks, we will undoubtedly hear about John Roberts' infamous footnote that argued for the overturn of Roe v. Wade:
Arguing a case for the first Bush administration in 1990 when he was deputy solicitor general, Roberts said Roe v. Wade "was wrongly decided and should be overruled." In his 2003 confirmation hearing, however, he told senators he was acting as an advocate for his client, rather than presenting his own positions. He told senators Roe was "the settled law of the land" and said "there's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."
It is important to keep in mind that John Roberts was advocating as a member of the solicitor general's office in support of the Bush administration's position that Roe v. Wade should be overturned. Lawyers are paid to be advocates and to represent certain causes - regardless of their personal beliefs.
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