By Mark Mellman - 09/21/05 12:00 AM EDT
Judge John Roberts may have misled the Senate, though there is little doubt he will get away with it.
Senators on both sides of the aisle, like most Americans, were eager to know his opinion on a variety of Supreme Court decisions, including Roe v. Wade. Sixty-seven percent believe that Roberts and other nominees should be required to provide their views on Roe.
Justice Clarence Thomas claimed in his sworn testimony that he had never even thought about Roe. It was either perjury or buffoonery. Judge Roberts was not asked that question, but three sets of facts seem clear:
• Judge Roberts has an opinion on the validity of the legal reasoning in Roe.
• Some people have knowledge of his views.
• Given these two facts, the arguments proffered by Judge Roberts for hiding his views on Roe are specious.
Everyone agrees that Judge Roberts is an erudite constitutional lawyer. It is inconceivable that such a person has not reached some conclusion about the validity of the legal reasoning employed in Roe.
But we have more than mere conjecture. As a Justice Department attorney, Judge Roberts wrote a brief explicitly stating, “We continue to believe that Roe was wrongly decided and should be overruled.”
He argues, with some merit, that we should not infer his personal view from a brief on behalf of a client. However, Roberts himself invited senators to look at his briefs, as well as at his opinions from the bench, in assessing his judicial philosophy. By that standard, his attitude toward Roe is self-evident.
But even if he meant that only some of his briefs afford insight into his thinking (without providing the key to distinguish one type from the other), it would burst the bounds of credulity to suggest that Roberts had not thought about Roe before he wrote a brief calling for it to be overturned.
Thus, it is almost certain that Judge Roberts has a view on whether Roe should be overturned.
It also seems likely that some people have knowledge of his views. It is hard to imagine that someone who traveled in conservative legal circles in Washington for 25 years has not discussed his views on Roe with someone. At a minimum, he likely discussed the matter with colleagues who worked on the infamous brief.
Certainly the leaders of most every anti-Roe organization in the country feel confident that Judge Roberts has a view and believe they know the substance of that view. They are certain Roberts will overturn Roe. Without revealing his judgment on Roe itself, Roberts could tell the anti-choice community that they are wrong to believe he has a view on Roe and wrong to believe they know what it is. He has not.
Accept that Roberts has a view on Roe of which others are aware, and the two arguments Judge Roberts offered for not answering the Roe questions are rendered meretricious.
First, he argued that he must approach any new case with an open mind, unencumbered by opinions expressed to the committee. But if he has a belief about the constitutionality of Roe, honed over a quarter of century thinking about and writing briefs on the case, what does it mean to be open-minded?
His second reason for not making his views known involved fairness to future litigants. But if Judge Roberts has discussed his opinion with others, his silence before the committee is particularly unjust to future litigants, some of whom will not know his position, while others will.
The greatest likelihood is that Judge Roberts hid his views for only one reason — politics. In dodging and weaving, Roberts looked exactly like the politician he professed not to be. The result is likely a stealth nominee; a man with clear views who kept them hidden.
Mellman is president of The Mellman Group and has worked for Democratic candidates and causes since 1982, including Sen. John Kerry (D-Mass.) last year.