August 16, 2005

Roberts' Extremism on Choice, Equality and Privacy

Several unappetizing facts have emerged as news agencies have picked through the documents released Monday from the years when he worked as counsel to the Reagan White House. There's the fetus memorial service (Emphasis mine in all quoted articles):

... Roberts' memo about the memorial service followed a three-year court battle over whether to release to anti-abortion activists about 16,500 aborted fetuses found in a metal storage container at the home of the director of a California pathology lab. The Supreme Court in March 1985 had let stand a lower court ruling against their release on grounds it would violate the separation of church and state.

Even without the fetuses, the activists persisted in holding a service and sought a telegram from Reagan that could be read at it. Roberts said he had no objection to the draft telegram of support. ...

Roberts thought equal pay for women was a "radical" concept, practically socialist:

"I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept," he wrote. "Their slogan may as well be 'From each according to his ability, to each according to her gender.' " ...

The Boston Globe had an interesting take on Roberts' briefs opposing affirmative action and pay equity, describing his stance as supporting race and gender blind policies. Which is to say that he doesn't think discrimination is a problem in America, or at least he didn't in the 80's, so one could only speculate that today must seem like a race and gender paradise to him. The problem is that when discrimination exists, a category blind policy actively perpetuates it.

The Globe article also continues the debate over the NARAL ad:

... One file released yesterday offered an epilogue to last week's furor over an anti-Roberts television ad by the National Abortion Rights Action League. The ad, which NARAL pulled, implied that Roberts had filed briefs that supported the actions of an abortion clinic bomber.

In fact, Roberts, then deputy solicitor general in the George H. W. Bush administration, filed briefs arguing that abortion clinics couldn't use a Reconstruction-era antidiscrimination law to stop protesters blockading their offices. Moreover, the NARAL ad used footage from a bombing in 1998 -- seven years after Roberts's briefs.

On Feb. 10, 1986, Roberts drafted a letter to a congressman who was concerned that Reagan might pardon convicted abortion-clinic bombers. Roberts's draft language said Reagan would do no such thing.

''The President unequivocally condemns such acts of violence and believes that those responsible should be prosecuted to the fullest extent of the law," Roberts wrote. ''No matter how lofty or sincerely held the goal, those who resort to violence to achieve it are criminals." ...

Well, that's reassuring. Not. Mark Kleiman wrote about what Roberts' uninvited amicus brief meant in terms of the political situation of the case in question:

... But one of the defendants in the earlier case was in fact a previously convicted clinic-bomber, and the amicus was filed in support of Operation Rescue, hardly a peaceful protest movement. (Three years after the brief was filed, a civil jury in Chicago found that Operation Rescue was a racketeering enterprise, in a case that is once again making its way up to the Supreme Court.)

... But that brief had political as well as legal meanings. Operation Rescue was then engaged in a violent, and largely successful, attempt to deny access to abortion to as many women as possible by closing down the clinics. The attorneys general of Virginia and New York both filed amici arguing that their states lacked the capacity to fight off Operation Rescue's efforts.

The Solicitor General's office was under no obligation to file an amicus in a civil lawsuit. Ask yourself whether the SG's office would have intervened similarly in a case involving violent protesters against U.S. support of the Contras, or Earth First, or the Animal Liberation Front, or Al Sharpton's shake-down crew, whatever the legal merits. No, I don't think so either.

If the Bush I Administration had in fact opposed anti-abortion violence and merely doubted that the anti-Klan law could properly be made to apply, it could have offered legislation making interference with the clinics a federal matter; such legislation was in fact passed under the Clinton Administration. But of course the administration did no such thing.

By arguing that the most successful terrorist campaign waged in this country since the days of the Klan was a matter for state and local jurisdiction (an echo, of course, of the argument offered against federal anti-lynching legislation in the 1930s and 1940s), Roberts and the rest of the Bush I crew was in effect backing the terrorists against their victims. That's not "excusing" violence, but it's not exactly opposing, either. ...

The Mahablog also weighed in on the subject of the ad, focusing mainly on the discrimination and right to privacy issues raised by Roberts' position in the case. Bitch PhD has more on the history and circumstantials of the Bray case that was the subject of the original NARAL ad. This LA Times article written at the time of the Bray case adds more color:

... Operation Rescue's (sic) members "are perfectly non-discriminatory in their opposition to abortion," Roberts told the court. "They are opposed to abortion, not women."

But women's rights layers argues that the 1871 law gave judges broad power to cope with "mob violence," even if subsequent Supreme Court rulings narrowed its application to instances of discrimination. The law authorizes judged to intervene "if two or more persons conspire" to use force to prevent others from exercising "any right or privilege" under the U. S. constitution.

Deborah Ellis of the NOW Legal Defense Fund said that Operation Rescue (sic) is engaged in "a nationwide systematic conspiracy" to prevent women from exercising their right to choose abortion.

... Outside the court, Operation Rescue (sic) founder Randall Terry praised the administration's stand and say that HIS FOLLOWERS would mobilize to ensure president Bush's re-election. "George Bush has been a faithful ally of the [anti-choice] movement and Operation Rescue (sic)," Terry said. "To vote for Bill Clinton is to sin against god."

But Patricia Ireland, president of the National Organization for Women, condemned the administration for backing the militant protesters. "Today, George Bush stands on the side of the vigilante mob," she said.

As Bitch PhD noted at the link above, while neither circumstantial evidence nor guilt by association are enough to convict someone, they're valid considerations when looking at a lifetime appointment to the highest court in the land. Roberts has closely associated with anti-choice groups and he filed a brief in favor of one of the most violent and organized of those groups.

Many conservatives in America are looking at the hatred spread by certain mullahs in Europe and Muslim countries and recognizing that these radical teachings are fueling the hatred that leads to violence against us. Britain has finally decided to start deporting the worst of them, and I don't think we're going to hear Bill O'Reilly, Ann Coulter or Michael Savage go on a rampage against that. Operation Rescue was responsible for a tide of fear and violence at clinics all around the country, people who committed acts of violence against clinics or doctors were disproportionately likely to be associated with them, and their leader Randall Terry was commonly known to have said things that we would be angered to hear had come out of the mouth of any Islamic authority figure:

  • "I want you to just let a wave of intolerance wash over you... I want you to let a wave of hatred wash over you. Yes, hate is good... Our goal is a Christian nation. We have a biblical duty, we are called by God, to conquer this country. We don't want equal time. We don't want pluralism." August 16, 1993.
  • "When I, or people like me, are running the country, you’d better flee, because we will find you, we will try you and we will execute you." ["reportedly said of doctors who perform abortions"] 1995.

This is the man whose organization John Roberts filed an unsolicited 'friend of the court' brief for, and on whose behalf he delivered oral arguments that helped successfully sway the verdict. These sentiments are terrorist sentiments, the actions of Operation Rescue were the actions of a terrorist organization and they inspired vicious acts of violence by people associated with them. These are John Roberts' friends.

Lastly, the usually fluffy USA Today has offered a hefty unsigned editorial that discusses the right to privacy, asking in the title, "Will Roberts leave you alone?" This excellently framed article finishes with a request for careful Senate scrutiny of Roberts' stand on this all-important issue:

Ask people about personal privacy, and most will see it as a top priority and a fundamental right. The last time a question of that sort was asked in a poll by Opinion Research for USA Weekend, an overwhelming 88% said they are concerned about their privacy and consider protecting it important.

... Three current justices — William Rehnquist, Antonin Scalia and Clarence Thomas — have questioned whether a right to privacy exists. The court doesn't need a fourth, not least because the anti-privacy argument is a denial of history and basic American values.

In fact, the right to privacy is older than the republic, protected in the Constitution and affirmed repeatedly in a century of court rulings before the abortion controversy. Though the word privacy isn't in the Constitution, the "right to be let alone," as Justice Louis Brandeis put it, permeates the document.

What are freedom of religion, freedom of speech and freedom from unlawful searches and the like other than respect for privacy? Leading Founders urged adoption of the Constitution as necessary to protect "private rights." And the Ninth Amendment was added to assure that other rights already taken for granted were "retained by the people."

... Roberts' record on the issue is scanty, but legal briefs he worked on and memos he wrote raise questions as to whether he accepts current law on privacy. As a Justice Department lawyer in 1981, for example, Roberts drafted an article that referred to "the so-called 'right to privacy,' " and asserted that "such an amorphous right is not to be found in the Constitution." Whether that was Roberts' view, or merely what his bosses wanted to hear, isn't clear. ...

Shorter Roberts: The government should avoid meddling in the sacred capitalist work place, but your private life is fair game.

We don't need a person like this on the Supreme Court and no Democrat should vote for him. If you have a Democratic Senator (or two), please write them today and lay out the case for voting against Roberts. Ask them to try to convince their moderate Republican colleagues that Roberts is bad for the civic values that we hold dear as Americans. If you have a Republican Senator (or two), don't be afraid to send some reasoned persuasion their direction, as well. Ask them to continue to press for more documentation and to commit to a thorough evaluation during his hearing.

Posted by natasha at August 16, 2005 10:32 AM | Law/Justice | TrackBack(1) | Technorati links |

Re the equal pay issue: it's not equal pay, it's "comparable worth" that's the issue. Like the Boston Globe article says, "In 1983, a federal judge had ruled in favor of a group of women who said they had been paid less than men for work of equal worth. The judge based his ruling on a study that indicated that traditionally female jobs, such as secretaries, and traditionally male jobs, such as truck drivers, each produced the same 'worth' of work product, but the secretaries were paid less...." Snow, Schneider and Johnson urged the Reagan administration not to support an appeal of the ruling, but Roberts disagreed.

Of course he did. Back then, it was a radical idea, and it's still a radical idea, which is why you don't hear many people pushing it anymore. Who in the world is supposed to decide which jobs are of comparable worth to each other? How are we supposed to know that truck drivers and secretaries produce similar value in their work product? The government would have to spend a ridiculous amount of time splitting hairs, enumerating long lists of comparable worth jobs, etc., etc. And EVERYONE would disagree. It's socialistic because market forces are unable to price salaries similarly across totally different industries; hence the government needs to intervene, and since there's only so much money out there, pay for comparable worth jobs would have to be leveled off -- to use the Boston Globe quote's example, truck driver pay would be lowered to make way for the raise in secretary pay. That's certainly redistributive.

Posted by: G Deleon at August 16, 2005 07:16 PM