Roe v. Wade v. Liberty, the Roberts backstory

A president has a right to nominate judges who share his view of the scope of government authority. This president’s view, argued before federal courts and the public, is that the notion of limits on executive power in any matter of national security is itself unconstitutional. (And, to be sure, what makes a matter one of national security is that the government claims it to be one.) Not surprisingly, President Bush has picked in John Roberts a replacement for Chief Justice William Rehnquist whose considerable jurisprudential talents will be brought to bear in freeing the executive branch of the tethers of legislative and judicial review.

The story of the Roberts nomination is the story of three separate judicial decisions. In 2004, in Hamdi v. Rumsfeld, the Supreme Court declined the opportunity to define the rights of prisoners designated as “enemy combatants.” On one hand, the court rejected the government’s claims of unreviewable authority to detain prisoners indefinitely, maintaining that prisoners had an ultimate right to review before a “neutral decision-maker.” On the other hand, the court failed to establish criteria of impartial review.

Specifically, the court did not declare that detainees were entitled to review in an Article III (civilian) court, and this omission has, at least for now, legitimized the administration’s preferred venue for review: “combatant status review tribunals.” These are essentially ad hoc courts empowered to hand out death sentences in secret — courts in which the presumption of innocence and protection against self-incrimination are revocable, and in which hearsay is admissible as evidence.

Obviously, the Supreme Court will have to take up the questions of the Hamdi case again and decide if military tribunals are sufficient to constitute neutral review. Now enter John Roberts, who was part of the three-judge panel that unanimously decided Hamdan v. Rumsfeld this past July. Roberts had an opportunity to rule, if only in dissent, that military tribunals mock both due process and the 14th Amendment requirement of equal protection for all “persons” (i.e. not just citizens) under U.S. jurisdiction.

But Roberts, by all accounts, has spent the last several decades auditioning for the role of Supreme Court Justice, and he was not about to blow his shot. So Roberts did what any servile courtier in his position would have done: joined the opinion of his co-panelist A. Raymond Randolph, that Congress’ enabling of the executive branch to use “all necessary and appropriate force” after Sept. 11 was in effect an authorization of review by military tribunals. So much for strict constructionism. Had the impossibly vague post-9/11 authorization of force not been available as a precedent, Roberts and his colleagues would undoubtedly have discovered even flimsier justification for prostrating themselves before the executive branch.

If the Hamdi and Hamdan cases sound obscure, that’s because of the grip that the third case in our triad continues to exert over the penumbra of quasi-official special interests and lobbies that constitute the Democratic coalition. The Democrats have allowed support for Roe v. Wade to become their singular criterion of minimal acceptability in federal judges, and the Republicans have cleverly indulged that mania by framing opposition to any judge who can be made to seem a moderate on abortion as the position of extremists and lunatics.

And John Roberts certainly can be made to seem a moderate on abortion — even if NARAL decided it would be tactically wise to run ads outrageously suggesting that Roberts condones anti-abortion terrorism (his ideology “leads him to excuse violence against other Americans,” according to a short-lived August ad campaign that was swiftly exposed as fraudulent). Since no one actually knows what Roberts’ ruling on a review of Roe v. Wade would be — though an educated guess could be made based on his presumption in favor of precedent and the fact that he was nominated in the first place by a president obsessed with maintaining Republican majorities — there is precisely no chance that Roberts’ nomination will be defeated.

Now we can see the outstanding debt the liberal left owes for mortgaging its integrity in the innocent 1990s. It accepted pittances from the Clinton administration — pro-choice and pro-affirmative action judges, lip service to universal health care, etc. — and looked the other way as a Democratic administration laid the foundations of its successor’s horrendous assaults on civil liberties. Without a plausible caricature of John Roberts as a compatriot of James Dobson, the left simply cannot muster the organizational strength to fight his nomination; having spent so many years raising funds and votes by frightening pro-choice moderates, the liberal left is utterly unable to make a coherent case that a nominee who supports Roe v. Wade might still be a net loss for individual rights. (Libertarians can make that case, but they are politically insignificant.)

After Roberts’ inevitable confirmation, President Bush will have to fill Sandra Day O’Connor’s pending vacancy. How fitting it would be if her seat is filled by Attorney General Alberto Gonzales, among the current favorites to receive the nomination. Just to review, as head of the White House Office of Legal Coul, Gonzales was the engineer of the administration’s detention policy. Gonzales’ office provided the legal arguments for overturning statutory restrictions on the permissible treatment of prisoners such as those contained in the Uniform Code of Military Justice, even suggesting that the president was empowered to immunize designated military agents against prosecution for violation of federal law. On the other hand, Gonzales supports Roe v. Wade. If the left understands that there is more to fundamental liberty than abortion rights, now would be the time to say so.



Daniel Koffler is a senior in Calhoun College. His column will appear on alternate Wednesdays.

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