From Baltimore County Community Times

Questions Swirl Around Court Nominee

Susan C. Ingram

July 27, 2005

In the days since President Bush's nomination of Judge John G. Roberts Jr. to the Supreme Court, reaction from Democrats has been cautious as they scramble to get a clear picture of where he stands on issues that could come before the nation's highest court.

But while Democrats generally adopted a wait-and-see attitude, Republicans mostly endorsed Roberts' life-long conservatism and support for the Republican Party.

This week, however, reports surfaced that the White House is withholding information about Roberts' background, raising questions about the thoroughness of the confirmation process and whether the Senate will be privy to all the information it needs to make an informed decision.

Last week, major news organizations reported Roberts was once a member of the conservative Federalist Society that aims to counter "orthodox liberal ideology," which the organization says dominates law schools and the legal profession.

The White House and then Roberts denied he was a dues-paying member. But the Washington Post reported Monday that Roberts is a former steering committee member of the organization.

Also, the White House refused to release files from when Roberts was in the solicitor general's office and was the No. 2 person under Kenneth W. Starr. Democrats say those files could possibly shed light on Roberts' opinions about abortion and the legal argument put forward in other cases that came before the Supreme Court, according to the July 26 New York Times.

Since Bush announced his Supreme Court pick, several elected Democrats offered terse or muted statements.

Maryland Sens. Paul S. Sarbanes and Barbara A. Mikulski exhibited cautious attitudes, although Mikulski touched on abortion rights with a reference to the "implicit right to privacy."

She said Roberts will not be rubber-stamped by the Senate and is subject to a thorough examination of his qualifications, record and background, including his "judicial competence, personal and professional integrity, and a commitment to core constitutional principals, the Bill of Rights and the implicit right to privacy."

Both Democrats and Republicans supported Roberts during his U.S. Court of Appeals confirmation hearings.

County Executive James T. Smith Jr., a former Circuit Court judge, said in a statement that during his tenure as a judge his own decisions "weren't philosophically or politically driven."

Smith's first impression is that Roberts handled his responsibility "judiciously, fairly and with a lot of consideration. It appears that his outcomes result from the facts presented to him and the law that applies."

County Councilman Kevin Kamenetz (D-2nd), an attorney, said his impression is that Roberts is "a straight constructionist. He appears to be a lawyer's lawyer."

"When you are on the Supreme Court, you are the final arbiter of the law, the final say, and you have to recognize over 200 years of precedent. It appears Judge Roberts follows that custom, and from a lawyer's perspective, that's what's important to me," Kamenetz said.

But State Delegate Bobby Zirkin (D-11th), another attorney, is wary of Bush's selection.

"There are certain constitutional tenants that shouldn't be messed with," Zirkin said. "Bush says things like [judges] shouldn't legislate from the bench. But on issues like abortion, he's perfectly happy to legislate from the bench."

Zirkin is concerned that Bush is stacking the court for a possible overturn of Roe v. Wade and to take away a woman's right to abortion.

"There is no way that George Bush is appointing a nominee to the bench who is not going to overturn Roe v. Wade to some extent," he said.

Zirkin cited Bush's election campaign promise to anti-abortion rights groups that he would work to reverse the landmark 1973 decision.

"No way he's not going to live up to that promise," Zirkin said.

Congressman Benjamin L. Cardin (D-3rd) issued a restrained statement that he wants to learn more about Roberts' "judicial record and philosophy," and Congressman C.A. Dutch Ruppersberger III (D-2nd) said he hopes Roberts "is forthcoming in requests for information in the coming weeks so that the American people have a full understanding of the nominee."

Congressman Elijah E. Cummings (D-7th) mentioned Roberts' experience as a judge, and the "balance" of the court in light of the moderating effect many say Justice Sandra Day O'Connor had on it during her 24-year tenure.

"Supreme Court justices serve for life. They have the power to dramatically influence the questions that are central to the lives of all Americans - questions about free speech, religious liberty and privacy, as well as economic issues like workers' rights, opportunity for Americans who are struggling to overcome disabilities and affirmative action," Cummings said in a statement.

He questioned Roberts' judicial experience, saying his short time on the Circuit Court "raises legitimate questions as to whether Judge Roberts has acquired the depth and breadth of wisdom needed to serve this nation well on our court of last resort."

Derek Walker, a spokesman for the Maryland Democratic Party, cautioned against confirming too quickly a judge who could leave the court leaning hard to the right.

"The Senate must carefully evaluate whether Judge Roberts can uphold our laws and defend the rights and freedoms of the American people or whether he will be a diehard conservative ideologue who will deepen our partisan divide," Walker said in a statement.

Walker's view contrasted with Maryland Republican Party chairman John M. Kane, who urged Maryland senators to vote to confirm Roberts.

He said Roberts is "a highly qualified and fair jurist," and he praised the judge's "reasoned approach."

As for another prominent Republican, Congressman Roscoe G. Bartlett, who represents northern Baltimore County and Western Maryland, declined to comment on the nomination.

Meanwhile, organizations opposed to a woman's right to choose support Roberts' confirmation, while groups such as NARAL Pro-Choice America have condemned his record on abortion rights and family planning cases.

NARAL said the administrations under which Roberts served "actively worked to over turn Roe v. Wade and restrict reproductive rights."

One subject Roberts seems not to have a clear record on is gay rights and gay marriage.

Dan Furmansky, executive director of Equality Maryland, a lesbian, gay, bisexual, transgender rights group, said Roberts' nomination to a life-long Supreme Court position warrants close scrutiny of his record on equal rights protections for everyone.

"The burden is on the president to assure Americans that this nominee will protect our civil rights," Furmansky said. "It is imperative that the Senate question Judge Roberts regarding his judicial philosophy on the right to privacy, recognition of the constitutional separation of church and state, protection from religious discrimination and the importance of rejecting legislation enacted with a discriminatory purpose."