Game Plan (Part Two)

By Michael-Louis Ingram
Updated: August 4, 2008

PHILADELPHIA — Prior to the destruction of the Gulf Coast by Hurricane Katrina, what seemed to be obscure in its importance was the appointment of John G. Roberts Jr. to the Supreme Court.

Early responses pegged the 50-year-old Roberts, who clerked for the recently deceased Chief Justice William Rehnquist, as a very competent lawyer and well-liked litigator.

The following confirmation hearings, timed with the added pending retirement of Justice Sandra Day O’Connor left a huge dent in the Court roster, and provided potential for a bum rush at the highest court in the land.

Nationally, it seemed an across-the-board Senate confirmation was in the offing. Locally, former state Sen. Rick Santorum was one of several who were quick to express an immediate approval of the choice. In a prepared statement, Santorum said:

“I am quite pleased that President Bush has nominated Judge John Roberts to replace Justice Rehnquist as Chief Justice of the Supreme Court. Judge Roberts is a highly qualified individual and fully capable of serving in such a prestigious capacity on our nations’ highest court.

“I look forward to participating in a fair confirmation process that is dignified, orderly and worthy of a person with such distinguished and high credentials as Judge Roberts.”

While the city of New Orleans was having its guts pumped out, and President Bush getting screamed by just about everyone for his aloofness and sloth – like response, he looked to pump up Roberts — to not only become part of the Court, but also its Chief Justice, potential swing vote and overall conscience.

Roberts’ resume and background had initially presented little dissent toward his acceptance; but new information pointed to Roberts’ leanings to the right. What first became a chore in following a comparatively miniscule paper trail for someone nominated to such a high office would quickly escalate into a game of hide and seek.

The Hon. Rep. John Conyers (D-MI) is a ranking member of the House Judiciary Committee, and says the question behind Roberts wasn’t one of likeability — it’s credibility.

“As a lawyer, John Roberts is brilliant,” contends Conyers, “but while being brilliant may be excellent for corporate law school, it doesn’t automatically qualify one for the responsibility which comes with the highest court in the land. There must be an additional job of close scrutiny during the confirmation hearings.”

Reports revealed Roberts’ rise began with his membership in the Federalist Society, a conservative legal organization whose roster of those enrolled was an in-house secret.

In spite of countless denials by Roberts that he was a member, it was revealed in the Washington Post that Roberts was a member of its steering committee from 1997-98, while a partner at the law firm of Hogan & Hartson.

Based on this Reaganesque memory lapse, fears of a stealth candidate now arose among those in the Congressional Black Caucus (CBC). These concerns were further exacerbated by Roberts’ participation in the 2000 election recount that ultimately allowed the Florida legislature to award its electoral votes to Bush; accounts that were not presented by mainstream media to any significant extent.

Given the added fact the Federalist Society has been a talent pool for many policy makers in the Bush administration, having Roberts address his background and position on various issues seemed apropos for the CBC.

The Hon. Rep. Chaka Fattah (D-PA) spoke of these concerns in preparation for the upcoming hearings. “We (CBC) drafted an invitation to have Judge Roberts meet with us and discuss his position pertaining matters germane to our constituencies,” said Fattah. “We asked for a meeting and a chance to talk prior to the vote, and although he eventually met with Sen. Barack Obama, the CBC wanted to be able to make an independent assessment of his nomination.”

Regarding the lack of decisions and other pertinent information usually connected with such a post, Fattah proclaimed, “I have never seen anyone whose record is like Roberts — it’s like ‘Casper the Friendly Ghost’; the White House blatantly refused to release information on Roberts until very late in the game, when the Reagan library released 38,000 pages, including some of his decisions.

“We also took into consideration the fact Roberts, at 50 years old would likely be a court fixture if successfully nominated, for the next 25-30 years. That affects not only my future, but my children’s future as well,” Fattah said.

Congresswoman Shelia Jackson-Lee (D-Tex.) echoed Farrah’s sentiments while also expressing her displeasure at not selecting a nominee in the mold of retiring justice Sandra Day O’Connor. “John Roberts’ record raises serious concerns as well as questions about where he stands on crucial legal and constitutional issues — it was extremely important for the Senate and the American people to get answers to those questions.

“Replacing Justice O’Connor with someone who is not committed to upholding Americans’ rights, liberties, and legal protections would be a constitutional catastrophe.”

The time factor was also not lost on Congresswoman Jackson-Lee’s thoughts. “It is the Senate’s duty to carefully consider nominees. Many justices serve for ten, twenty or more years and will have an enormous impact on the laws of our country.

“For a nomination decision, it is important to do it right, not to do it quickly. The Judiciary Committee must be allowed to do its work, and that includes an in-depth review of the nominee and hearings to allow for questions and answers.”

Sen. Arlen Specter, presiding chairman of the Judiciary Committee, when asked at a news conference of the importance of replacing Justice O’Connor with either a woman or minority, replied “Well, it is desirable to have a balance on the court. And the two women are, I think, a minimum. But I don’t think you can have a quota system either for women or a minority as an absolute determinant.”

Previous attempts to hastily push through candidates for other government positions have already had detrimental effects, implies Jackson-Lee. “As recent examples, such as the nomination of Bernard Kerik (nominated by Bush to be secretary of Homeland

Security, only to withdraw when it was revealed Kerik had hired an employee whose legal status was questionable) have shown, it is important we not rush to a decision before fully examining the facts.”

Running the “Counter – Be – Trey”

With President Bush still playing catch-up on Hurricane Katrina, the war in Iraq, the Karl Rove and Valerie Plame scandals were still fresh in the minds of most people. But in spite of the late night show spoofs and assault on his mental capacities, Bush — again through the toothless Specter — bumrushed the process and installed Roberts as Chief Justice with far more whisper than scream.

This coupled with mainstream media’s lack of focus was like running the bootleg or counter-trey at the perfect time, exposing the soft underbelly of an overaggressive liberal defense.

The move to bring Roberts in as Chief Justice smacked of a misdirection ploy on the part of Team Bush from Jump Street, and Rep. Conyers was livid in attempting to stop the country from slipping into darkness with this selection. “I fear Judge Roberts’ record seems to suggest he’ll give deference to the executive branch in controversial areas; this could well lead to an effort supporting stripping of the court’s power on selective issues.

“For example, in some cases this could imply the high court shouldn’t hear cases involving desegregation or abortion. When you look back on the recent presidential abuses of power; carrying on with a war based on obviously erroneous information—these are but some of the many reasons this process needed to be as open and exposed to the American public as possible.”

And those facts, alludes Conyers, were quite illuminating as CBC efforts did not produced the desired result. “Given all the particulars,” sighed Conyers, “John G. Roberts may be the most personable ‘wolf in sheep’s clothing’ to come down the pike in a long time.”

Paper Chased

When previous nominees have come before the court, decisions they have presided on are a large part of their resume. It gives an indication of their personal interpretation of the law and provides a barometer by which the nominating committee can work with to determine their ability to delineate Constitutional law from personal beliefs.

Some of Roberts’ past legal decisions have now prompted a closer look into the mind of the man re positions on topical issues. Among those decisions are the following:

On Crime: Roberts ruled for a man who challenged a sentence for fraud; but in a different case, said police did not violate the constitutional rights of a 12-year-old girl who was arrested, handcuffed and detained for eating a French fry inside a Washington D.C. train station.

Roberts’ commented on what was perceived as ‘a weak civil rights claim’ that “no one is happy with the events that led to this litigation.” (Hedgepeth v. Washington Metropolitan Area Transit Authority, 2004)

On Police Searches: Roberts joined an appeals court ruling in 2004 upholding trunk searches of vehicles, even if officers don’t indicate they may be looking for evidence of a crime. (U.S. v. Brown, 2004)

On Disabilities: While serving as lead counsel for Toyota, Roberts went against a woman who was fired by Toyota after asking for accommodations after being diagnosed with carpal tunnel syndrome. The court ruled that although this impaired her work, it didn’t impair her life activities. Some rights groups are fearful this could drive a wedge into the current Americans with Disabilities Act.

On abortion: As an attorney working for George Herbert Walker Bush’s administration, Roberts helped write a Supreme Court brief stating “we continue to believe Roe v. Wade was wrongly decided and should be overruled.” (Rust v. Sullivan, 1991) Roberts later exclaimed in a 2003 statement that Roe v. Wade was “the settled law of the land” and “there is nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”

On religion: Unsuccessfully argued to the Supreme Court that public schools could sponsor prayer at graduation ceremonies. The language included, “we do not believe that graduation ceremonies pose a risk of coercion.” (Lee v. Weisman, 1992)

On military tribunals: According to the Associated Press (AP), Roberts was part of a unanimous decision to allow the Pentagon to proceed with plans for military tribunals to try terrorism suspects at Guantanamo Bay, Cuba.

On the Voting Rights Act: According to Jacqueline Berrien, Esq., Assistant Director-Counsel of the NAACP Legal Defense Fund, this is a particular area of concern. “After the amendment to reinforce the original act of 1965, Roberts vehemently argued against discrimination “effects clauses” that would “create a quota system—and a quota system for Section Two could lead to a quota system in American politics. Just as we oppose quotas in employment and education, so too should it be in the elective process.”

On Civil Rights/Habeas Corpus: Joined the unanimous opinion of denying the claim of a prisoner who argued by tightening parole rules in the middle of his sentence, the compound punishment should be deemed unconstitutional and after-the-fact (Fletcher v. District of Columbia, 2004).

Berrien contends habeas corpus allows for convictions achieved by the state court to be reviewed and reversed. “Roberts view was that habeas corpus ‘was too expensive’ and saw this as ‘taxing the court’—and many cases have reached the higher courts based on this.

“There is no question that in order to insure there are no violations of human or civil rights, Roberts’ appointment to the Court should be seen a cause of great concern to African-Americans. Ultimately, the Senate decides on whether he gets in, but the people elect the senate. I would suggest that everyone not sleep on this and give this matter some attention.”

Next Time: My BASN colleague and fellow Sports MC Wendell P. Simpson joins in as we deploy a Cover Two defense on faith-based initiatives.