Right Rift Over Roberts
Tuesday, September 20, 2005
By: Alexander Bolton - The Hill

Scarborough Looking for Answers from Chief Judge Candidate

A rift has opened between conservatives in the nation’s capital and those outside the Washington Beltway over John Roberts and his carefully worded testimony to the Senate Judiciary Committee last week.

The split has divided those on the right who communicate regularly with the White House from conservative activists whose view of Roberts was shaped by the recently completed hearings.

Though it is extremely unlikely that conservatives who are voicing concerns about Roberts behind the scenes would oppose his confirmation by the Senate, they are sending a message to President Bush that his next nominee to the Supreme Court should have a clear record and be unafraid to express boldly his or her beliefs.

As result, political pressure is growing on Bush to nominate an outspoken conservative to replace retiring Justice Sandra Day O’Connor.

So far, Republicans and conservatives have presented to the public unified enthusiasm for Roberts. But since the first round of questions of last week’s hearings, conservatives have raised concerns behind the scenes, debating each other in private conversations and conference calls.

“I’m definitely one who has major concerns about the Roberts nomination,” said Dr. Virginia Armstrong, the national chairwoman of Eagle Forum’s Court Watch Project. “I had questions before the hearing. Since the hearing, those questions and concerns are much more intense than they were.”

“The biggest question is what is this man’s approach to the Constitution, and we were never told that,” said Armstrong, who said she debated Roberts’s testimony with fellow conservatives yesterday. “We were told he did not have an overarching philosophy.”

She said that Roberts’s answers last week indicated that he would follow Supreme Court precedent even if he thought it was not necessarily supported by the text of the Constitution.

For example, Roberts said that, when considering overturning precedent, “it is not enough that you may think the prior decision was wrongly decided.”

“You do look at these other factors, like settled expectations, like the legitimacy of the court, whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments,” he said.

To some conservatives, concepts such as “workability” are alarming because they are considered vacuous and can be infused with a judge’s personal views. In essence, such concepts are the building blocks of judicial activism.

Armstrong, who has a doctorate in political science and doesn’t consider herself a political operative, is based in Texas. Her foils in recent debates have been conservatives based in Washington, D.C., who have more frequent contact with White House emissaries and Roberts’s former colleagues who vouch for the nominee’s conservative credentials in the absence of an extensive record.

Ironically, the aspects of Roberts’s nomination that have frustrated Senate Democrats and liberal groups trying to inflict political damage on him — specifically the few writings expressing his legal views, and furthermore the reluctance to express those views in Senate hearings — have also frustrated conservatives.

“After four days of testimony before the Senate Judiciary Committee, there is much that we know about Judge John Roberts and yet much that we still do not know,” said Dr. Rick Scarborough, president of Vision America, a Texas-based Judeo-Christian advocacy group.

“We do know that Judge Roberts says he will perform the proper duties of a judge, which is to apply the laws of the land according to the intent of the drafters, and will not legislate from the bench,” he said in a statement given to The Hill that praised Roberts for being well spoken and intelligent.

But Scarborough also raised concerns: “We don’t know whether he recognizes that the judiciary is subject to checks and balances by the other branches of government. We don’t know whether he believes that the Roe v. Wade abortion decision was wrongly decided and should be overruled, or whether the court’s homosexual ‘rights’ cases were wrongly decided and should be overruled.”

“In short, we don’t know whether a Chief Justice Roberts would be more like Justice Scalia, who is regularly faithful to the Constitution, or like Justice Souter, who regularly betrays the Constitution,” he said.

But questions among conservatives have not been confined strictly to those from outside the Beltway.

“I think there is some disappointment in the way that Roberts testified,” said an aide to a Republican member of the Judiciary Committee, who noted that the disappointment is not so great that GOP senators would vote against Roberts.

“In general, people thought that he could answer the question of whether he is a conservative,” the aide said.

Aside from Roberts’s decision not to endorse conservative views in the hearing, some answers that seemed intended to defuse Democratic criticism have alarmed conservatives.

In particular, responding to Sen. Herb Kohl (D-Wis.) during the first round of questioning, Roberts said that he agreed with the Supreme Court’s conclusion in Griswold v. Connecticut that marital privacy extends to contraception and its availability.

Roberts noted — seemingly approvingly — that the court has since grounded the right to privacy in the 14th Amendment. The statement created a firestorm among conservatives, which Roberts’s handlers scrambled to quell.

Griswold and privacy are hot topics because the court has founded reproductive rights, including the right to an abortion, on the right to privacy that case helped establish.

“Once people understood and looked at the judge’s answers and his comments, everyone was comfortable,” said former Republican National Committee Chairman Ed Gillespie, who is overseeing the Senate confirmation for the White House.

Roberts’s defenders noted that Roberts’s discussion of Griswold was nearly identical to Justice Clarence Thomas’s during his confirmation 14 years earlier.

Other D.C.-based conservative leaders have praised Roberts’s Senate testimony.

“I think that Roberts was masterful, and he is also a solid conservative,” said Manuel Miranda, who formerly handled strategy on judicial nominations for Senate Majority Leader Bill Frist (R-Tenn.).

Miranda rebutted conservatives who have criticized Roberts avowed respect for precedent.

“His answers on precedent show that he is not like Robert Bork, he is like Rehnquist,” Miranda said. “Some people believe nothing overrides the written word of the Constitution, but the rule of stability in law, which is stare decisis, is part of the fabric of the Constitution because undoubtedly the Framers’ primary intent was to signal a stable and written law to the people.”