Slate's Jurisprudence: What's Ahead for Roberts
ALEX CHADWICK, host:
From NPR News and Slate magazine online, this is DAY TO DAY. I'm Alex Chadwick.
The lead today: Across the country, people and groups with a stake in the decisions of the Supreme Court--that's just about all of us--are drawing up their plans. Both sides will soon join the battle over Judge John Roberts, President Bush's nominee to replace Sandra Day O'Connor on the Supreme Court. Mr. Bush announced his choice and introduced Judge Roberts to the nation last night.
President GEORGE W. BUSH: He has profound respect for the rule of law and for the liberties guaranteed to every citizen. He will strictly apply the Constitution in laws, not legislate from the bench.
CHADWICK: Emily Bazelon is legal affairs writer for our contributing partners at the online magazine Slate. She was with us yesterday; she's back today. Emily, first of all, tell us about Judge Roberts' career, his previous jobs, and what prepares him for this.
EMILY BAZELON reporting:
Judge Roberts is 50 years old and he's been on the DC Circuit Court of Appeals for two years. And before then, he spent his career in corporate law and Republican politics. Notably, he was deputy solicitor general under Ken Starr in the Justice Department during the first Bush administration. He also has stellar academic credentials. He graduated summa cum laude from Harvard, and he was the managing editor at the Harvard Law Review when he was a law student there. So, from the point of view of being prepared intellectually, he certainly is that.
CHADWICK: You have a piece up on Slate that we commend to listeners. This is something you wrote last night about an important terrorism trial case that Judge Roberts helped decide just last week, and you're disturbed by it. Tell us about it.
BAZELON: Well, the case is called Hamdan vs. Rumsfeld, and Judge Roberts didn't write the decision, but he joined it fully. The petitioner--his name's Salim Hamdan, and he's the former driver and bodyguard of Osama bin Laden. And the question is what the parameters should be for the trial that the Bush administration wants to have for Hamdan. He's one of very few of the Guantanamo detainees who have actually been charged with a crime. And the Bush administration wants to try him before a special military tribunal. So, for example, Mr. Hamdan has no right necessarily to be present at this trial. And I was troubled by this case because it's really a very sweeping opinion. It gives the president a sort of blank check in prosecuting terrorism suspects. There's nothing in the opinion that even limits to non-citizens in particular, and it really kind of goes beyond a lot of traditional legal reasoning in this area.
CHADWICK: Well, that's one opinion. But one of the things people are saying about Judge Roberts is he's only been a judge for a couple of years, so there are not many opinions of his to look at. What do you think are his chances for confirmation at this point?
BAZELON: I think his chances for confirmation are fairly good unless some information comes to light that hasn't so far. He is not a judge who has been in the very aggressive mold of Scalia or Thomas, for example, on the Supreme Court. He's really much more like Chief Justice William Rehnquist, who he actually clerked for. And that's the kind of conservative who can be harder for the Democrats to fight because he's someone who hasn't left the sort of bomb-thrower record that provides an obvious target.
CHADWICK: You call him, in the lead to your piece, the establishment choice for Sandra Day O'Connor's seat, and that's what you say Republicans and Democrats have been saying in Washington for three weeks--Democrats, too.
BAZELON: Well, he's the only one we've been hearing about in the last few weeks who seems like a classic DC insider. And a lot of his record comes from his time as a government lawyer. And so some Democrats as well as Republicans have argued that the views that he espoused in the briefs he wrote for the Bush administration on abortion, for example, aren't necessarily his personally held views. And so they're holding out hope that when he gets to the Supreme Court--and he's obviously a fully independent justice--that he'll be fair-minded and perhaps revisit some of the more right-wing positions that he took as a lawyer.
CHADWICK: Well, about abortion? Didn't he write an argument that said Roe v. Wade should be overturned?
BAZELON: Yes, he did. When he was a deputy solicitor general for George H.W. Bush, he wrote a brief in a case about whether doctors and clinics that receive federal funds should be allowed to talk about abortion. And the Bush administration argued that they should not be allowed to talk about abortion. And sort of in passing, Roberts said in his brief that Roe vs. Wade should be overturned. That was, of course, the official position of the George Bush administration, and so then the question becomes whether it's also a deeply held belief of Roberts himself.
CHADWICK: And as a lawyer, as a legal person, we just can't draw any conclusion about what he actually thinks despite his having written a very strong argument.
BAZELON: Well, I don't know if I would go that far. I mean, certainly someone who is in the sort of Republican positions of power that John Roberts has been in has conservative views, and then the question really becomes how he would just exercise those views and express them once he was on the nation's highest court. And that's a question we can't really be sure of.
CHADWICK: Opinion and analysis from Emily Bazelon. Her piece on Judge John Roberts is up now at slate.com. Emily, thanks for being with us again.
BAZELON: Thanks a lot, Alex.
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