August 08, 2005,
Over the last couple of weeks opponents of John Roberts's confirmation to the Supreme Court have been remarkably forthcoming about their strategy: attack his record on civil rights. They intend to thwart his confirmation by portraying Judge Roberts as a regressive extremist whose positions are out of step with current civil-rights jurisprudence.
They will fail.
Their effort thus far has been remarkably flaccid. Roberts's opponents have seized upon disparate, ostensibly telling phrases in memoranda written by Roberts as a young attorney. Finding little alarming there, (other than sober exegeses on the Voting Rights Act and Title IX, with which they happen to disagree) they've pronounced him presumptively hostile to civil rights because, well, he was appointed by President Bush and has associated with conservatives.
Hazel Trice Edney, Washington correspondent for the black press news service NNPA, relates that former U.S. Commission on Civil Rights chairwoman, Mary Frances Berry has "noted that Roberts' two year record as a judge on the U.S. 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." [Emphasis added.]
Jesse Jackson maintains that "with his nomination of Judge Roberts, Bush strikes another blow to America's public policy position (sic), 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. Supporters of voting rights, fair elections and judicial independence have much to fear."
Edney suggests that Ted Shaw, president and general counsel of the NAACP Legal Defense and Education Fund, still has an open mind about Roberts (although Sunday's Boston Globe reports that his "level of discomfort is rising" because of perceptions that Roberts may be the deciding vote to overturn Grutter v. Bollinger, the racial-preference case). Shaw's test for whether Roberts is acceptable for the Supreme Court is rather simple: "The question of whether somebody's a conservative, that's not the only question. The question for me is what kind of conservative they are? Whether (the) nominees are going to be open-minded people or whether they are going to be hard, right ideologues whose minds are closed to the arguments of people who bring cases before the court."
It's clear that at the time they issued the statements quoted above, Berry and Jackson hadn't reviewed Judge Roberts's record on the D.C. Court of Appeals. Had they done so, they'd find that Roberts easily passes Ted Shaw's test: As far as his judicial role goes, Roberts isn't an ideologue of the Left or the Right; rather, he's a judge who simply interprets the law. Neither is Roberts someone whose mind is "closed to the arguments of people who bring cases before the court."
If Roberts is a hard-right, closed-minded ideologue one would expect that he'd rarely side with his fellow judges on the D.C. Circuit Court of Appeals who were appointed by Democrat presidents. Indeed, one would expect that Roberts would vote with his Republican colleagues and against his Democrat ones by overwhelming margins.
But a review of Judge Roberts's two-year record on the D.C. Circuit shows that if he's a closed-minded ideologue, then so are all the other judges on that court, whether appointed by Democrats or Republicans.
Of the published three-judge panel opinions issued by the D.C. Circuit between June 2, 2003, and July 31, 2005, Roberts sat on 129 panels, 124 of which resulted in unanimous opinions. Roberts voted with the majority 125 of 129 times and authored 45 majority opinions, 43 of which were unanimous. In the four cases in which he did not join the majority, Roberts dissented in one, concurred in part and dissented in part of another and concurred in the judgment and concurred in part of the final two.
If, as Berry and Jackson seem to believe, the political party of the appointing president should be treated as a rough proxy for ideology, then ideological differences could have been a determinative factor only in the five cases where a Roberts's panel failed to issue a unanimous decision. Moreover, Roberts's detractors should note that in two of those five cases, the alleged extremist joined with a Democrat-appointed judge to form a majority.
Consider Roberts's record when sitting on panels with two Democrat-appointed judges (RDD panels); then compare such record to the panels where Roberts sat with one Republican-appointed judge and one Democrat-appointed judge (RRD panels); and finally compare such record to panels with two other Republican-appointed judges (RRR panels):
RDD Panels: Roberts sat with two Democrat-appointed judges in 20 cases, 17 of which resulted in unanimous decisions. He wrote the majority opinion 7 times, 6 of which were unanimous dissented once, concurred in part twice and dissented in part once. In the key False Claims Act case of Totten vs. Bombardier, the Democrat-appointed judges split, one writing a dissent and the other unreservedly joining the majority opinion written by Roberts.
RRD Panels: Roberts sat on 65 panels comprised of another Republican-appointed colleague and one Democrat-appointed colleague. Of those cases, 63 were unanimous and two were decided by 2-1 votes. Roberts wrote the majority opinion 23 times, 22 of which were unanimous. In the first 2-1 decision, Roberts was joined in his opinion by his Republican-appointed colleague striking down an award of attorneys' fees under the Equal Access to Justice Act. Roberts's detractors who maintain that he's hostile to civil rights should note that in the second 2-1 decision Roberts voted with the majority, upholding a civil rights claim against a state actor's 11th Amendment Sovereign Immunity defense. Roberts joined the opinion of his Democrat-appointed colleague.
RRR Panels: In the remaining 44 panels, Roberts sat with two other Republican-appointed colleagues. All 44 panels produced a unanimous result. Roberts wrote 15 of the opinions.
Obviously, only a portion of the cases in which Roberts participated were civil-rights related. Just as obviously, while Roberts's panels were almost uniformly unanimous, a thorough assessment of his judicial approach requires an interpretation of the actual facts and applicable law of each case. (A recent study by, among others, Cass Sunstein suggests that the probability that a judge will vote according to ideology in cases involving such matters as affirmative action is amplified by the presence of others on the panel from the same party.) Nonetheless, Roberts's detractors cannot credibly claim that he's a judicial extremist or ideologue without leveling the same charges against every other judge on the court.
Conservatives needn't be concerned that the above record somehow portends a justice with an expansive legal approach that's receptive to the concept of a living, breathing Constitution. An examination of the rationales in his opinions (some of which will be analyzed in upcoming pieces) provides reassurance. He's a conservative, i.e., he interprets the law, he doesn't make policy. And while history shows that not even the most prescient of judicial Kremlinologists can predict how someone unrestrained by the prospect of appellate review will behave upon elevation to the Supreme Court, Roberts' opinions manifestly show that he comes from a mold similar to that of his former boss, William Rehnquist, with accents that remind of Scalia's textualism. When reviewing his opinions particularly when adding context from his time as an advocate and counsel one is struck immediately by five things:
the lack of penumbras, emanations, or sociology masquerading as legal analysis;
Roberts has a keen understanding of civil-rights laws. He'll easily withstand any attack based on that issue.
Peter Kirsanow is a member of the U.S. Commission on Civil Rights and an attorney in Cleveland, Ohio. These comments do not necessarily reflect the position of the commission.