More Anti-Busing, Anti-Quota Dirt (?) On Roberts…

I have commented several times — most recently here — that the establishment press and liberal interest groups have been pointing with alarm to positions Judge Roberts advocated in his memos during the Reagan administration that, to the rest of us, all seem to fall within a range that extends from persuasive to common sense. Today, the Washington Post contributes another chapter in article written by Mike Allen and R. Jeffrey Smith.

First, there is the lack of balance maneuver. Note this early paragraph:

Advocacy groups said Roberts’s pledge to respect established rulings is one indicator of how he might approach Roe v. Wade, which established a right to abortion. Nancy Keenan, president of NARAL Pro-Choice America, which supports abortion rights, said Roberts gave “lawyerly answers” and is “running a political campaign to create the appearance of open-mindedness.”

Note well, there is only one group quoted here, not groups, and — surprise! — it is one critical of Roberts. But maybe I’m being unfair. Maybe Allen and Smith quoted Nancy Keenan of NARAL in a subtle attempt to undermine these “advocacy groups” because her comments were so outlandish. Imagine: a federal appellate judge and former appellate lawyer with a reputation as one of the best giving “lawyerly answers”! What, one wonders, does she, or should we, expect? Of course, Ms. Keenan does have remarkable powers of perception. She can tell, for example, that Judge Roberts is in fact close-minded, and that appearances to the contrary are just that — appearances.

But one other remarkable assertion in this paragraph is not Keenan’s at all, but Allen’s and Smith’s: they write that Roe v. Wade established a right to abortion. They seem to have forgotten that the script calls upon them, and others, to deny that activist judges create rights, that the preferred usage is some version of recognized or found rights in the Constitution. To admit, as they did, that the right to abortion was established by the Court gives added, though I’m sure unintended, weight to what is ostensibly the subject of their article, “Judges Should Have ‘Limited’ Role, Roberts Says.”

Roberts echoed the views of President Bush in describing his judicial philosophy. Roberts said that he views the role of judges as “limited” and that they “do not have a commission to solve society’s problems, as they see them, but simply to decide cases before them according to the rule of law.”

Responding to a question about judicial activism, Roberts said, “When the other branches of government exceed their constitutionally-mandated limits, the courts can act to confine them to the proper bounds. It is judicial self-restraint, however, that confines judges to their proper constitutional responsibilities.

On the one hand liberals claim, now, that they don’t like activist judges, but on the other they are afraid of judges who will not “establish” rights that can be found only in the “emanations and penumbra” of the Constitution.

Now note the following two paragraphs:

Separately, new documents released by the National Archives from Roberts’s tenure as a senior adviser to the attorney general during the Reagan administration make clear that he was deeply skeptical of the court’s recognition of a citizen’s fundamental “right to privacy” — the legal concept that underpinned its historic 1973 decision upholding a right to abortion.

Although the documents do not spell out Roberts’s personal views on abortion, they add to previously released documents suggesting that he had more in common with those who dissented from the court’s reliance on “fundamental rights” than he did with the rulings of its majority.

First, in describing Roberts’ own writing about privacy, Allen and Smith highlight their own use of “established” by, correctly, noting that Roberts stated his skepticism over the Court’s “recognition” of a fundamental privacy right.

Much more revealing, however, is the second paragraph above, where Allen and White implicitly assume that Roberts’ opinion of Roe v. Wade — or the kind of opinion he would have written had he been on the Court at the time — is wholly determined by his “personal views on abortion.” That is, they seem unable to comprehend that one’s view of whether or not the Constitution contains a fundamental right to privacy can be independent of one’s “personal view of abortion.”

In this Allen and White both reflect and contribute to the current liberal infatuation with the notion that law is no more than politics in another arena.

There’s more, of course. Roberts is shown through his early memos to have agreed with such unsavory characters as former Solicitor General Erwin Griswold and Supreme Court Justice Hugo Black, men formerly admired by liberals. Moreover, if you can believe it, Roberts “supported the repeal of rules barring schools from receiving federal funds if they had discriminatory dress codes.” I’m not sure what a “discriminatory dress code is,” but surely all right (which is to say, left) thinking people would want the federal government intimately involved in monitoring such codes.

Finally, Roberts is shown to have opposed “itrusive remedies which have not been proven to be effective.”

As an example, Roberts wrote: “We no longer demand busing, so disruptive to the education of our children, or quotas, which have been so divisive in the workforce.”

What? He opposed (opposes) both busing and quotas? How can the Democrats and their “advocacy groups” possibly tolerate such a candidate?