Abortion War Over Roberts?!?

That's the headline on Drudge. The charge is based upon Roberts' co-authorship of the brief in Rust v. Sullivan. I explained why this does not mean he is anti-Roe here. Indeed, whatever Roberts' opinion of Roe, he is a phenomenal nominee. The SCOTUSBlog profile can be found here.

UPDATE: Adam White at Southern Appeal notes that Roberts was the sixth lawyer listed on the Rust brief, and didn't even argue the case.

Why is this [as in the broader issue] important? Because it is improper to ascribe to an attorney the positions advocated on behalf of his or her clients. As I said before, I don't know whether Roberts would vote to overturn Roe. Maybe he would, but neither his participation in Rust nor his wife's pro-life views is enough to make such an assumption. [Note addition in brackets above.]

SECOND UPDATE: A PFAW release (posted on BenchMemos) warning of Roberts' "alarming" record reads in part:

Roberts urged the Supreme Court to overturn Roe v. Wade while arguing before the Court as Deputy Solicitor General in a case that did not even directly concern that issue. His brief plainly states that "Roe was wrongly decided and should be overruled."(emphases added).

THIRD UPDATE: According to Robert Alt, Harvard law professor Lawrence Tribe, who argued the other side in Rust, says those who attack Roberts over the Rust brief are giving him a "bum rap."

Related Posts (on one page):

  1. Abortion War Over Roberts?!?
  2. Roberts on Roe:
Greedy Clerk (mail):
His wife is also an active member of "Feminists for Life" -- a Justice Roberts would be a pretty sure vote to overturn Casey/Roe -- why Juan is so afraid to admit this, I have no idea. . . . I thought that the constitution compelled this result, after all.
7.19.2005 10:21pm
justin (www):
He is absolutely anti-Roe.

He is absolutely anti-Roe.

7.19.2005 10:31pm
Devin McCullen:
It certainly isn't proof, but if you were assigning someone to write a brief about a high-profile abortion case, isn't it likely that you'd pick someone whose personal position corresponds with the Administration's? (Any Administration.) Roberts was not the only person who could have written that brief.

Plus, if the religious conservatives don't complain about him, we'll know that he's pro-life.
7.19.2005 10:35pm
John Roberts is a man of high integrity and great principle. He is far more conservative than I am, but knowing him (both as a clerk watching him argue before the Court, then later as a friend), it is my belief that his respect for the Supreme Court as an institution would make it very difficult for him to tinker lightly with established precedent.
7.19.2005 11:03pm
I find it relatively unlikely that brief-writing duty at the Department of Justice is assigned based upon how ideologically committed the author is to a certain footnote regarding Roe v. Wade.
7.19.2005 11:09pm
Robert Schwartz (mail):
I can only hope that Roberts wants to overturn Roe. I am not particularly pro-life, but Roe was and is an abomination. Bush won and there are 55 Republican senators, I can only hope that this appointment is one of the spoils of victory.
7.19.2005 11:36pm
John Jenkins (mail):
Unfortunately that means peeling off five Democrat senators at least, possibly more to cover defections, to ensure that Roberts is confirmed. Once he gets out of committee (which is probaby a foregone conclusion) the question becomes whether the Democrats back out on their compromise, er, whether these are extraordinary circumstances.

The Democrat senators will (must?) filibuster to appease the hard left portion of their supporters, which may well cost them support in the long run (there are three senators who would be consistent in opposing Roberts, all Democrats; that is clearly not enough).

A bigger question is whether anyone cares. Is this all inside baseball that no one really gives a damn about? I don't know, but mainly that's because I am both politically aware and a lawyer so this directly affects me. People who are neither may just not give a rip. To the extent people do care, the question is whether it will be politically worth it to the Democrats to oppose Roberts too vehemently.

Might they give a little now so they can claim to be on the side of the angels when they oppose the replacement for Rehnquist? I don't know, but you don't get to Washington by not knowing how to play politics. You can be sure Roberts was selected because Republicans he is politically good for the Republicans and you can be sure the Democrats' response will be what they believe to be in their best interests. Other than that, it's all a guess at this point.
7.20.2005 12:19am
Did I miss the memo explaining that for now, and for all time, only vocal supporters of Roe v. Wade are fit to be judges or justices?
7.20.2005 1:38am
Adam White (www):
This is not a question of whether he is pro- or anti-Roe. This is a question of whether the press will utterly misrepresent things like this in its coverage of the courts. Based on the evidence it cites, there is no reasonable conclusion that he is anti-Roe -- and there *certainly* is no grounds for calling it "his brief" or saying that he "argued" the case.

There is no justification for ascribing every attorney every position he has advocated on behalf of his every client.
7.20.2005 2:25am
Chrisdoc (mail):
An interesting bit is PFAW's point that the Roe line was gratuitous in the Rust brief. I'm not personally familiar enough at the this point to dispute that on my own. Nonetheless, this evening I saw an interesting interview with Laurence Tribe, who argued on the other side in Rust, in which he stated that the reference to Roe was distinctly not gratuitous, i.e., that it was a necessary addition to the brief in order to support the argument the administration was making in that brief.
7.20.2005 2:53am
Let's put it this way. If he gives a clear statement that Roe v. Wade is the settled law of the land, I'm willing to take him at his word. If he equivocates, I think it's unfair to suggest that the brief in which he participated can't even be one piece of evidence.
7.20.2005 2:55am
Carl (mail):
I think the quote is going to hurt him. Not enough to derail it all, but it will hurt. Nonlawyers (i.e. most of us reg'lar folks) are not going to believe for one moment that he wasn't in sympathy to some degree with that statement when he wrote it.

I think it would be foolish of the Administration to take the position that it doesn't count because we don't know if he meant it. Better, I would say, if they took the position that (A) the will of the people, as expressed in legislation since 1973, is certainly that there is some basic right to abortion under some circumstances, however tricky it may be to precisely define the circs (and it would be best left to the legislature to do so). And he would, of course, respect and enforce that consensus (as reflected in the law) regardless of any personal feelings. But (B), even if the outcome was OK, Roe was maybe not a finely crafted decision in the best tradition of jurisprudence mumble mumble technical legalese stuff blah blah. That is, he himself would largely criticise Roe on its technical quality, not necessarily on the desirability of the eventual outcome. Hey, he's known as a bit of a legal geek already, why not trade on that?

Well, how would you decide Roe today Mr. Roberts? Senator, that's a strange question. You agree 2005 is not 1973, I hope. Times have changed, we've made wonderful progress on equality for women and minorities blah blah [insert multiculti feelgood pap here]. It seems very hard to believe that a case just like Roe would come up again. You might as well ask how I would decide Dred Scott, when, of course, there have been no runaway slaves for 150 years and there seems little prospect of any.

Mr. Roberts, you're being argumentative. How would you decide a case very like Roe, then? Say, one that relied on Roe as a precedent? Well, Senator, of course I can't tell you that. You're either asking me for a personal opinion -- and I've already said my personal opinions have nothing to do with my jurisprudence -- or you're asking me for a judicial opinion, and, sir, I would not be a responsible judge if I wrote an opinion without knowing all the facts of the case. It would be plain nuts for me to state how I'd rule on a case -- undoubtably a difficult and painful case, with enormous stakes for the folks involved (since it involves some tragic confluence of factors that thrusts what should be private joy, birth, into the ugly glare of the courtroom) -- knowing nothing other than the fact that one side or the other cited Roe in its pleadings. I hope you see that the individual circumstances of the case would have to weigh very heavily in my decision, and, without knowing them, I can't tell you how I'd decide.

That will play well in Peoria. In truth, SCOTUS decides stuff based on grand principles, of course, but we plain folk like to imagine that they remember the briefs and stacks of paper conceal actual real people caught in actual painful dilemmas, and we hope they treat us as individuals. After the public response to Kelo, however "misinformed" that might have been about the proper role of the Supreme Court, I think it would be wise to remember it. He could even cite O'Connor's supposed predilection that way, and ward off comparisons to Scalia, who natters on about texts and their original meaning. One of the great aspects of GWB as President is that, no matter how much he keeps his eye on the grand sweep of history, he never forgets the actual real individuals who are bitty motes caught up in it.
7.20.2005 7:18am
If the "will of the people" is so firmly behind Roe, then have it overturned and replaced with ACTUAL legislation. Why is that so scary to the left?

I read about all these polls that say 60 or 70 percent of the population wants Roe upheld, yet if that is actually true then we don't even need Roe. What is the fuss?
7.20.2005 8:09am
John Jenkins (mail):
Steve, he was one of six writers on that brief. I just co-wrote a brief with 3 writers and there are things in it I would not have written; your standard would impute those statements to me personally if I refused to answer a question about a hypothetical case that I should not answer because I cannot be bound by it, in that the facts of a real case might change the outcome. That's a tough standard.
7.20.2005 9:11am
I noticed that Steve mentioned if "he gives a clear statement that Roe v. Wade is the settled law of the land, I'm willing to take him at his word". When the name was leaked I was watching Hardball hosted by Dan Abrams and they read part of Mr. Roberts testimony when he was confirmed to the DC Court of Appeals. The portion they read was an answer to the Roe question and Mr. Roberts answered using language similar to Steves. I can't seem to find a transcript of the show last night or Mr. Roberts testimony. Does anyone know where I can find a transcript of the actual testimony Mr. Roberts gave during his confirmation?
7.20.2005 9:30am
Clerk (mail):
In response to talk about Roberts saying that Roe is the law of the land in his confirmation hearings to the DC Circuit, isn't that exactly what a nominee to a Circuit Court of Appeals needs to/should say? As we all know, for a Judge on a Circuit Court of Appeals, Supreme Court law is his precedent and he must follow it! For him not to have given his personal view on the matter was absolutely the right thing to do - at that time. NOW, as Chuck Shumer stated last night, it is an entirely different ballgame. Now the American people deserve to know how he feels about Roe and whether he believes it should be upheld. Now, unlike before, he could be in a position to overturn it. I just hope he answers these questions truthfully so that we know where he stands.
7.20.2005 10:40am
Bruce Hayden (mail):
Here is my prediction. Roberts will not make any mistakes during the confirmation hearing. He is too good of a litigator, and those on the Democratic side questioning him, by and large, are not. So, his nomination will be sent to the floor on a party line vote. No surprise.

In the Senate, the Democrats will grandstand, but do even worse with him. The Republicans will let this go on for awhile, until they vote cloture. Another party line vote. Then, they pull the pin on the "nuclear option". Maybe one or two Republicans may stray, but that is unlikely. McCain knows that if he helps in keeping Roberts off of the Supreme Court, the Republicans won't vote for him for dog catcher, never mind president. So, with the new majority vote rule in place for judicial nominations, debate will be shut off, and Roberts will be confirmed by the Senate, with maybe a couple of adventursome Democrats voting aye.

So, in the end, the Republicans will have both a controversial nominee appointed to the Supreme Court as precedent for later nominations, AND, the majority rule for cutting off debate on judicial nominees. The next one will be a lot easier.
7.20.2005 11:21am
Bruce Hayden (mail):
Let me add that I predict that Roberts's answer to all of those briefs, etc. that he was listed on to be that, sorry, but he was acting as an attorney. His personal views there were irrelevant. Entirely proper. While it may not satisfy the Democrats in the Senate, it will be enough of a fig leaf for the Republicans there. And that, in the end, is what is important.
7.20.2005 11:24am
alkali (mail):
... I don't know whether Roberts would vote to overturn Roe. Maybe he would, but neither his participation in Rust nor his wife's pro-life views is enough to make such an assumption.

This seems to set the bar awfully high. Clearly it's not possible to know to a moral certainty how Roberts would vote, but having written a major anti-Roe brief and having a wife who is prominently involved in a pro-life organization would seem to be, you know, pretty good evidence of what he would do.

(For the record, I wouldn't vote to overturn Roe, but I think Roberts will probably get confirmed and don't see much point in opposing the nomination.)
7.20.2005 12:20pm
Let us remember that Laura Bush has said some surprisingly pro-choice things in interviews. There is little doubt that the President does not share such leanings. The involvement of one's wife is only of limited value in predicting views of the candidate, even at the Presidential level. I hope he is pro-life, but the argument based on his wife's social activities cannot and should not be used as impeachable evidence.
7.20.2005 12:48pm
NickM (mail) (www):
It would have been especially nice if some nominee to a district or circuit court had given Senators a lecture about how stupid a question about Roe is, because Casey modified Roe, and Casey is the current binding precedent.

7.20.2005 3:51pm
non-lawyer Jim:
Isn't this like saying that if a public defender represents a murderer then he supports murder? Isn't a lawyer's responsibility is to represent his client?
7.20.2005 7:33pm
Bruce Hayden (mail):
Jim, of course. And that is what Roberts is going to say.

The comeback to that argument, I believe, is that some assert that a lawyer shouldn't work for anyone whom he disagrees with, and thus, you should be able to attribute the views of the client to the attorney.

I frankly disagree with that philosophy. But it does exist, and that is what you are going to hear implied a lot in the weeks or months to come.
7.20.2005 10:52pm
alkali (mail):
The comeback to that argument, I believe, is that some assert that a lawyer shouldn't work for anyone whom he disagrees with, and thus, you should be able to attribute the views of the client to the attorney.

No, the response to that argument is that attorneys, and particularly former editors of the Harvard Law Review, have a lot of different career choices they can make, and you can tell something about the attorney's own views from the choices he or she makes.

That is not to say that an attorney passionately believes in -- or even agrees with -- every single argument he or she might make in the course of a career, but you don't find yourself writing anti-Roe briefs for the Solicitor General's office by accident.

(Likewise, I don't imagine that a lot of Sierra Club attorneys sit around wishing they didn't have to spend their days arguing in favor of environmental regulations they personally despise.)
7.21.2005 12:26pm
non-lawyer Jim:
Bruce and Alkali, thanks for you responses.

Alkali, to follow up on your point; due to the variety of issues at hand, wouldn't a job at the DOJ be far less indicative of a person's beliefs than a job at the Sierra Club or say, the Club for Growth?
7.21.2005 4:43pm
alkali (mail):
Jobs at DOJ vary greatly. If you're a first-year assistant U.S. attorney prosecuting drug mules in Miami, you do what your superiors tell you. If you're deputy Solicitor General, you're pretty close to the top of the food chain, and you're not there unless you want to be there and very senior people in the administration want you there.

To be clear, I can imagine -- though I doubt -- that Roberts really doesn't have a particularly strong opinion on Roe and was involved in writing the Rust brief anyway. Similarly, I can imagine -- though, again, I doubt it -- that Judge and Mrs. Roberts privately disagree about the abortion issue. But there's no reason to pretend that those facts don't give us any clue about what Roberts' personal views on Roe and abortion are; of course they do.
7.21.2005 6:39pm