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Finding out where a justice stands is a worthy endeavor



Published: Fri, July 22, 2005 @ 12:00 a.m.



President Bush has nominated a candidate for associate justice of the Supreme Court of the United States who appears, at least in these early days, to be politically unassailable.

John Roberts, 50, grew up in Indiana, sailed through Harvard in three years, graduated magna cum laude from Harvard Law, where as an editor of the law review he would cap a hard night's work with a trip to the ice cream parlor. He clerked for a federal appellate judge and for William Rehnquist on the Supreme Court when the now-chief justice was still an associate.

He worked in the offices of the U.S. attorney general, White House counsel and solicitor general and followed that phase of his public service with a decade in one of Washington's most prestigious law firms. He has argued before the Supreme Court 39 times, winning 25 of those cases, which works out to a batting average of .641 in the biggest legal league in the world.

In 2003, he took a seat on the United States Court of Appeals for the District of Columbia Circuit, a bench considered second only to the Supreme Court itself.

A gentleman

On top of all that, he is described almost universally by those who have worked with him -- or even lawyers who came up against him in court -- as a gentleman of the old school. They say he is courteous, considerate and more humble than many men who have far more to be humble about.

All that said, it cannot be ignored that Roberts is a relatively young and apparently healthy man who has been nominated for a lifetime job on a court that can -- and has -- changed the face of America.

As such, senators on both sides of the aisle have an obligation to find out where Roberts stands on the most pressing issues of the day.

President Bush praised Roberts Tuesday night as a man who will "strictly apply the Constitution in laws, not legislate from the bench."

That and similar constructions have become popular phrases in the run-up to a Supreme Court appointment, but they are little more than rhetoric.

The Fifth Amendment quite clearly states that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury ... nor be deprived of life, liberty, or property, without due process of law." Yet Roberts joined two other judges on the Court of Appeals in overturning a lower court ruling that gave a prisoner at Guantanamo access to the federal courts. That ruling handed President Bush broad-ranging powers to define the law as he wants to see it in the war on terror. Is that the legal philosophy of a strict constructionist? Or is it the reasoning of a member of the Federalist Society, which has an antipathy toward international conventions (including those originating in Geneva)?

Roe v. Wade

Regarding a woman's right to choose whether to carry a child or have an abortion, it has been widely reported that Roberts said Roe v. Wade is "a matter of settled law." But it should be remembered that he said that within the context of a confirmation hearing for a seat on the appeals court. Roberts' willingness to accept Roe as the law of the land as a judge on the court of appeals does not necessarily mean that he would not join four other justices on the Supreme Court in overturning Roe.

The hearings should be civil, but the judiciary committee and the full Senate are under no obligation to rubber stamp the president's choice. Any strict constructionist would recognize that. If the Founding Fathers had not intended for the Senate to act as counterweight to the president in shaping the nation's judiciary, they would not have given the Senate the power to advise and consent.

Unless there is a startling revelation in the course of the hearings, Roberts is almost assured confirmation. But this remains a nation that is almost equally divided between red and blue, and at the very least all Americans deserve to know how far to the right of center the new associate justice stands.




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