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Judge Roberts has a Less than Supreme Civil Rights Record
By: Hazel Trice Edney
NNPA Washington Correspondent
Originally posted 7/26/2005

WASHINGTON (NNPA) – Judge John Roberts, President Bush’s nominee to replace swing-voter Sandra Day O’Connor on the U. S. Supreme Court, is likely to build on his ultra-conservative legal record that has been unsupportive of civil rights, say constitutional and legal scholars.

“I would expect him to do pretty much what we think,” says Mary Frances Berry, a constitutional scholar and former chair of the U. S. Commission on Civil Rights.

“In the history of the Supreme Court, which I have studied carefully because I teach about these matters, most justices have done pretty much what you would have expected them to do, based on their backgrounds before they came to the court.

There have been exceptions of people who grew and changed and we can all cite exceptions. But, by and large, you can pretty much bet that given whatever pattern they’ve been following, that’s the one that they’re likely to follow.”

Berry, who teaches a course on the history of American law at the University of Pennsylvania, notes that Roberts’ two-year record as a judge on the United States Court of Appeals for the District of Columbia Circuit yields little empirical evidence of his anti-civil rights bias, but his legal background and associations give little reason for optimism.

“There’s nothing that he has done in his career that appears to be anti-establishment. And since most Black people are not a part of the establishment, I would think that there is a reason to be concerned,” Berry says.

President Bush announced his nomination of Roberts last week to the immediate applause of conservatives around the country, including Senate Judiciary Committee Chairman Arlen Spector (R- Penn.), who praised Roberts as being a “non-activist” judge.

That’s an indirect way of describing judges hesitant to aggressively support civil rights or the landmark Roe v. Wade case upholding a woman’s right to choose to have an abortion. Harvard Law Professor Charles Ogletree, who graduated from Harvard law school a year ahead of Roberts, says the nominee is indeed an activist judge.

“Spector’s well-intentioned efforts to go out and try to make Roberts something that he isn’t, I think, will not pass scrutiny,” Ogletree explains. “Just as [Supreme Court Justices Antonin] Scalia, [Clarence] Thomas and [Chief Justice William H.] Rehnquist, there are conservatives who are actively trying to change things they disagree with.”

Progressives had hoped that Bush would nominate a more centralist judge in the mold of Sandra Day O’Conner, the swing voter on the court. O’Connor cast the deciding votes in more than 100 cases decided on a 5-to-4 vote.

She provided the deciding vote to uphold the University of Michigan affirmative action case. Yet, she sided with the court’s conservative wing in invalidating the University of Michigan’s undergraduate affirmative action program that relied, in part, on a points system.

It had been expected that Chief Justice Rehnquist would resign at the close of this term, meaning there would be no ideological shift on the court because one conservative would be replacing another one.

However, O’Connor’s decision to step down and Rehnquist’s decision to stay on, despite failing health, means many of the narrow 5-4 decisions in favor of civil rights might now go in the other direction.

“If it turns out to be, as one could reasonably expect, that Judge Roberts is not as pragmatic and not as moderate as Justice O’Connor, that one single vote could change the outcome in affirmative action and other race cases in the foreseeable future,” says Ogletree.

Ted Shaw, president and director-counsel of the NAACP Legal Defense and Educational Fund, says the LDF will carefully examine Robert’s record before taking a stand.

“The question of whether somebody’s a conservative, that’s not the only question,” Shaw explains. “The question for me is what kind of conservative they are? Whether his nominees are going to be open-minded people or whether they’re going to be hard, right ideologues whose minds are closed to the arguments of people who bring cases before the court.”

Because Roberts has only two years of judicial experience on the D. C. District Court of Appeals, his record is skimpy. But some civil rights advocates say is enough in the public record to cause alarm.

“With his nomination of Judge Roberts, Bush strikes another blow to America’s public policy position, and he sets off a new phase of our struggle for an independent court which upholds the Constitution and protects civil rights and civil liberties,” says Jesse Jackson Sr. “Supporters of voting rights, fair elections and judicial independence have much to fear.”

Jackson points out that Roberts was one of the lawyers behind stopping the Florida vote count in the election debacle of 2000. An attorney at Hogan & Hartson, Roberts advised Florida Gov. Jeb Bush, the president’s brother, during the election.
Berry points to another case in which Roberts appears adverse to civil rights.

As an associate counsel to President Ronald Reagan, Roberts assisted with Grove City College v. Bell, a Pennsylvania case in which Reagan agreed with the college that non-discrimination did not have to be enforced all over campus; only in the student aid office, Berry recounts.

After a Supreme Court ruling that affirmed the university’s position, civil rights groups got the Civil Rights Restoration Act passed by Congress in 1987 so that if a college or university got federal money, universities would still have to enforce non-discrimination throughout the campus.

“He seemed to be in favor of the narrow definition at that time based on the memo that he wrote,” Berry says.
While Roberts has little judicial record, Civil Rights organizations have begun digging.

Roberts has issued only 40 opinions from the bench, giving little indication on how he views racial issues. But, according to People for the American way, in the infamous case of Hedgepeth v. Washington Metro Area Transit Authority, Roberts issued an opinion that appeared insensitive to a 12-year-old girl arrested and handcuffed for eating a single french fry during a ''zero tolerance'' crackdown on eating and drinking by transit police on the subway two years ago.

''The child was searched, handcuffed, her shoelaces were removed, she was taken away in a windowless police vehicle, fingerprinted, and held for three hours until she was released into her mother’s custody,'' PFAW reports.

The mother brought a civil rights action on behalf of her daughter, claiming that her daughter’s Fourth and Fifth Amendment rights had been violated. She claimed that the child’s equal protection rights had been violated because, under then-D.C. law, adults in the same situation would only have been given a citation, while juveniles had to be arrested.

''Judge Roberts’s opinion (joined by Judges Karen LeCraft Henderson and Stephen Williams) affirmed the district court’s ruling against the mother. Rejecting the equal protection claim, Roberts held that the law requiring harsher treatment of juveniles was rationally related to 'the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.'''

In response to the negative publicity surrounding the ''one french fry'' incident, the no-citation policy for juveniles was changed.

PFAW also reports that Roberts must be questioned closely on First Amendment issues. In 1990 whe he was deputy solicitor general, he co-authored the government's brief in United States v. Eichman, contending that the Flag Protection Act of 1989, which criminalized flag burning, was constitutional.

“The First Amendment does not prohibit Congress . . . from removing the American flag as a prop available to those who seek to express their own views by destroying it,” Roberts wrote.

But, In a 5-4 ruling, the Supreme Court majority, including ultra conservative Justice Scalia, disagreed, holding that the law violated the First Amendment. ''As the Court explained in striking down the law, “'[p]unishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.''' PFAW reports.

Fortunately, Berry states, because O’Connor advocated a clause to revisit the University of Michigan law school decision in 25 years, it is highly unlikely the court will attempt to reverse affirmative action in higher education in the near future.
But there are cases of specific importance to Blacks that appear headed toward the high court, says Shaw.

One is Hayden v. Pataki, a New York State felon disenfranchisement lawsuit in which the LDF is representing the rights of the plaintiff, a convicted felon fighting for his voting and other rights.

“It would be good if Black folk were to educate themselves as much as possible about this nominee and about the process,” Shaw says. “Right now the challenge for the nation is to make sure that he gets a fair hearing, but that he doesn’t get a free ride.”


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