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PFAW: "Borking" Roberts?

August 26, 2005 3:29 PM

I�ll let Richard have the last word on term limits; I think we�ve set out a few of the arguments, and no need to explore the topic further. Roberts proceedings seem to be heating up a bit, though, and I want to address Richard�s point about opposition to Roberts really springing from the fact that he�s a Reagan Republican. On Wednesday, People for the American Way (PFAW) released a �Report� on Roberts, urging Senators to vote against him, and the key operative language was:

In particular he has not demonstrated a commitment to protecting constitutional safeguards, respecting the role of the Congress, and understanding the impact of the law and the Court on the lives of individual Americans. Throughout his career, Roberts has shown a pattern of working from powerful positions to undermine Americans� rights and liberties rather than uphold them. During the past 25 years, Roberts worked to resist the important progress America has made in realizing the Constitution�s promise of equal justice under law. His confirmation to the Supreme Court would jeopardize many of the legal and constitutional protections that Americans enjoy and would undermine the nation�s hard-won progress in civil rights and equal opportunity, privacy and reproductive choice, environmental protection, and religious liberty. He would strengthen the power of the presidency, already dangerously expanded by President Bush. . . . Confirming Roberts would shift the Supreme Court significantly to the right, threatening the rights and freedoms of individual Americans, their families, and their communities.

One is tempted simply to dismiss this as nonsense on stilts, but it will be taken seriously by the media, and ostensibly taken seriously by several Senators, most likely Leahy and Kennedy. The language used is very similar to that trotted out against Robert Bork in Senator Kennedy�s notoriousRobert Bork�s America� speech. I can�t decide whether PFAW is telling us that any conservative would simply be unacceptable to them, and--worse--I can�t decide if PFAW actually believes what it is saying. As Richard points out, Roberts took a number of positions on behalf of clients (one of whom was the federal government led by a conservative Republican president), and their views should not be imputed to Roberts. Moreover, there is absolutely no evidence that a Justice Roberts would behave in particular ways on particular issues, since that Justice Roberts has not yet gotten on the Court. PFAW appears to believe not only that one can infer future behavior from past legal practice (clearly false), but also that there is only one correct perspective for Justices of the Supreme Court, and that is to read the constitution to expand its preferred �legal and constitutional protections,� many of which are simply not dictated by the document.

I hope that PFAW�s venomous and contemptible efforts will meet with the same fate as NARAL�s charge that Roberts believed in helping those who do violence at abortion clinics, but the success of these tactics in the case of Robert Bork, and their almost success in Clarence Thomas�s case, lead me to think that those on the left, such as PFAW are not yet ready to give up �Borking.� I think it�s our job to take a strong stand against this kind of mendacious conduct, and I fervently hope that wiser heads will prevail in the Senate.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.