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Bush Picks Roberts to Keep Conservatives in Charge of Court; Roberts Chided for ‘Consistent Opposition’ to Civil Rights
By: George E. Curry and Hazel Trice Edney
NNPA Washington Bureau
Originally posted 9/7/2005

WASHINGTON (NNPA) – President Bush quickly nominated John Roberts to become Chief Justice of the U.S. Supreme Court to avoid having liberal Justice John Paul Stevens, the court’s senior judge, take over the administrative duties of the court and possibly influencing the outcome of some cases, court observers say.

In a surprise Labor Day move, Bush announced that Roberts, a judge on U.S Court of Appeals for the District of Columbia, is his choice to succeed Chief Justice William H. Rehnquist, who died of cancer on Saturday. Roberts was originally nominated to replace retiring judge Sandra Day O’Connor, who has said she will remain on the court until her successor has been confirmed.

Roberts’ Senate committee hearings had been scheduled to get underway Tuesday, but have been delayed until Thursday or next Monday, according to Senate staffers.

Bush hopes to have Roberts confirmed by Oct. 3, the court’s opening day.

“Now that the president has said he will nominate Judge Roberts as chief justice, the stakes are higher and the Senate’s advice and consent responsibility is even more important,” said Democratic leader Harry Reid of Nevada.

Roberts, who was appointed by Bush to the federal appeals court in 2003, was selected, in part, because of his limited time of the bench, giving his critics fewer targets to oppose his nomination. At 50 years old, he could remain chief justice for three decades and guide the court along a more conservative path. There had been speculation that either Antonin Scalia or Clarence Thomas – the two justices Bush says he most admire – would be elevated to the top post. Now, Roberts, the judge with the least experience on the court, will be in charge, if confirmed.

Standing beside Bush in the Oval Office on Monday, Roberts said: “I am honored and humbled by the confidence the president has shown in me. I am very much aware that if I am confirmed I would succeed a man I deeply respect and admire, a man who has been very kind to me for 25 years.”

The second Supreme Court opening comes at a time when the Bush administration is reeling from criticism that it has mishandled the Hurricane Katrina recovery and rescue efforts. Administration officials are hoping that interest in the Supreme Court selections will now shift some of the public attention from the botched federal efforts in southern Louisiana, Mississippi and Alabama.

Just as President Bush acted quickly, so did critics of Roberts.

People for the American Way President Ralph G. Neas issued a statement Monday, saying: “People for the American Way opposed Roberts’ nomination to replace retiring Justice Sandra Day O’Connor in large part based on his hostility to the laws and remedies that protect Americans from discrimination and his longtime efforts to restrict the role of the courts in upholding Americans’ rights and legal protections. To an even greater degree, that record makes him unfit for the position of Chief Justice, and we will vigorously oppose his nomination.”

Unlike before, when Roberts, an ardent conservative, was seeking to replace Justice O’Connor, a centrist that often cast the deciding vote in 5-4 decisions, if Roberts is confirmed President Bush will be essentially replacing one conservative with another one. The real shift to the right is expected to occur when Bush ultimately picks a successor to O’Connor.

As the White House scrambles to vet a second appointee – expected to be either a woman or the court’s first Hispanic – civil rights groups had already stepped up their criticism of Roberts, who clerked for then Associate Justice Rehnquist in 1980.

After nearly two months of studying the legal records of Roberts, the NAACP Legal Defense and Educational Fund last week announced its opposition to Roberts, pointing to its 60-page report critical of the judge’s civil rights record.

“The record reveals a consistent opposition to a broad-minded reading of civil rights statutes and other constitutional applications to civil rights issues,” says Ted Shaw, president and director-counsel of the LDF. “The record reveals that Judge Roberts insisted in his work, to narrow the application to civil rights. And for those reasons, we reach our conclusion.”

Much of the surfacing information came from Roberts’ work in private practice, the Reagan administration’s Justice Department nearly two decades ago.

“Some people change their views over the course of time. For others, one could draw a straight line from where they were decades ago to where they are today,” Shaw explains. “Nothing in the available record allows us to conclude that John Robert’s views have changed. Indeed, given how deeply held those views have been, a change of mind would be remarkable.”

According to the report, Roberts has held positions opposite to the LDF on a string of issues, including voting rights, affirmative action, equal educational opportunity, discrimination by federally funded institutions, and fair housing and employment.

The report states:

· On Voting Rights: “By a significant degree, voting rights was the civil rights issue on which Roberts was most active during his fifteen months [1981-82] as special assistant to attorney General William French Smith. More than twenty-five memoranda written by Roberts illustrate his key role in formulating and advancing the Administration’s [unsuccessful] opposition to amending Section 2 of the Voting Rights Act to provide an ‘effects test’ [allowing challenges to election practices that had the “effect” rather than the “intent” of discriminating]…The Reagan Administration announced its position against the effects test in November 1981, after the House passed its bill [To reauthorize the Voting Rights Act] and before the Senate introduced its bill. It was widely reported that the Justice Department, rather than the White House, initiated the opposition.”

· On Affirmative Action: “During his later career in private practice [1992-2001], Roberts filed briefs vigorously opposing affirmative action. For example, he filed and amicus brief on behalf of the Associated General Contractors of America in Adarand Constructors, Inc. v, Pena…arguing that strict scrutiny should be applied to all government racial classifications in light of ‘the extreme danger to society from the use of racial preferences.’”

The report also states: “Roberts’ hostility to affirmative action remedies is one of the defining aspects of his civil rights record. He immediately positioned himself on the leading edge of the Reagan administration’s assault on affirmative action and retrenchment campaign. Significantly, in stark contrast to the searching practical assessment that drove Justice O’Conner’s recent opinion in Grutter [v. Bollinger], in which the Supreme Court upheld certain affirmative action remedies in higher education…”

· On Equal Educational Opportunity: “As special assistant at the Justice Department, John Roberts helped develop a program under the banner of fighting ‘judicial activism’ that was targeted most pointedly to restricting the reach of the Fourteenth Amendment’s equal protection and due process clauses.”

Also, “Roberts disagreed with other Justice Department officials about the extent to which federal courts could be limited in fashioning remedies in school desegregation cases.”

· On Discrimination by federally funded institutions: “While at the Justice Department, Roberts supported restrictions on the application of federal laws banning institutions that receive federal funds from discriminating.”

· On Fair Housing and Employment: “In a 1983 memorandum to White House Counsel Fred Fielding, Roberts [then an associate counsel to President Ronald Reagan] recommended a slow pace for fair housing legislation, ‘as the storm clouds gather over the issue.’ Roberts wrote:

‘The fact that we were burned last year because we did not sail in with new voting rights legislation does not mean we will be hurt this year if we go slow on housing legislation.’”

Shaw released the report at a Capitol Hill Press conference last week. The NAACP, led by its new president and chief executive officer Bruce Gordon, joined in the press conference with its own opposition. The NAACP and the NAACP Legal Defense and Educational Fund are separate organizations.

“While it comes as no surprise that the nominee’s views are different than ours, it is the seemingly extreme nature of those views, the degree of difference, that makes his candidacy unacceptable,” says Gordon. “Roberts has demonstrated a commitment to reversing the historic civil rights gains of the past 40 years.”

Marcia Greenberger, co-president of the National Women’s Law Center, and Ann Marie Tallman, president and general counsel of the Mexican American Legal Defense and Educational Fund (MALDEF), also announced their opposition to Roberts at the press conference.

Greenberger says, “John Roberts has closed his eyes to the devastating consequences to women of his legal arguments, and he has simply disregarded contrary judicial precedents.”

Says Tallman, Roberts’ confirmation “would not advance justice for Latinos,” in part, because he has opposed core principles on access to immigrant rights and fair employment, she says.

Prior to becoming a judge, Roberts had spent 14 years in private practice and held positions in Republican administrations in the Justice Department and office of the White House Counsel.
With the death of Chief Justice William H. Rehnquist over the weekend, it is unclear how having two Supreme Court vacancies at the same time will impact Roberts’ confirmation hearings.

NAACP Chairman Julian Bond says the NAACP will pay special attention to those Democrats that struck a deal with moderate Republicans in May to avoid a showdown over the Senate’s filibuster rules.

“To the degree that we know that the Republicans are shameless, we know that some of the Democrats are spineless and we expect to see all of them – Democrat and Republican alike - take their jobs seriously,” Bond said. “They were elected to rigorously examine this nominee, among other things and we want to make sure they do that.”

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