The measure of Roberts's conservatism is what he won't do on the bench.
BY MANUEL MIRANDA
Monday, August 29, 2005 12:01 a.m. EDT
According to our liberal friends, we can be certain that as soon as John Roberts takes his seat on the Supreme court, he'll set about undermining civil rights, workers' rights, environmental protections and abortion rights. Judge Roberts's allies, particularly among the French-cuffed GOP spokesmen in Washington, have generally responded to this litany by telling us that John Roberts is the most qualified nominee--ever!
From listening to Judge Roberts's supporters, one might think that conservatives have a secret agenda because of how little they say. Some conservatives, especially pro-life leaders, have been corralled by White House surrogates for fear that if they speak their minds they will scare the horses. This overcaution is a missed opportunity that underestimates the American people. It reflects laziness and cowardice. Conservatives should be addressing the liberals' arguments head-on.
The American people should be told, first of all, that when liberals say "civil rights," they mean mostly lucrative trial-lawyer-driven employee grievances, the rights of convicted murderers, and the continued use of divisive racial quotas. When liberals say "women's rights," they mean that parents have no right to know when a man impregnates their minor daughter and takes her for an abortion. When liberals assail Judge Roberts about the issue of equal pay for women--which is the law--they really mean that government should dictate how much every worker is paid. When liberals speak of environmental and worker rights, they mean unlimited federal government regulatory power over local governments and the private sector.
Last week, Ralph Neas of People for the American Way, Judge Roberts's most automatonic opponent, came out officially against him. The Committee for Justice's Sean Rushton responded by putting out a list of positions that People for the American Way, under Mr. Neas's leadership, has taken in various court cases. Among the things he opposes: parental choice in education, voluntary prayer in public places, pornography filters on public library computers, regulation of hard-core Internet porn and even restrictions on simulated child porn. Not that Mr. Neas is a negative fellow. He supports deleting "under God" from the Pledge of Allegiance, redefining marriage to include same-sex couples, enfranchising felons, forcing openly gay scoutmasters on the Boy Scouts, partial-birth abortion, judicially imposed tax hikes, removing the Ten Commandments from public places, and, of course, racial quotas in college admissions.
When President Bush announced Judge Roberts's appointment last month, some conservatives feared he would turn out to be another David Souter. As it turns out, after the release of 75,000 pages of his writings, Judge Roberts appears to be as politically conservative a nominee as anyone could want. Today liberal opponents have a wider range of issues to hang Roberts on even than when they opposed Robert Bork. Mr. Neas got it right last week when he observed that Judge Roberts had been at the "epicenter" of the Reagan revolution.
All this is good, and conservatives should say so. None of it, however, guarantees anything about what John Roberts will do on the Supreme Court. There is no promise that Roberts would vote to correct the error of Roe v. Wade, just to pick an example. The mark of a conservative judicial nominee, the kind that a Republican president is expected to nominate, is not what he will do, it is most of all, what he won't do. He will not rewrite the Constitution to invent new rights or to justify new federal powers.
I'd bet good money that in cases of religious liberty John Roberts will not further limit the free-exercise clause in favor of the establishment clause; that he will not look favorably on federal government usurpations of local government functions; and that he will not allow an act of congress that overreaches past constitutional authority to stand.
If I said what John Roberts will do, I would sound like a liberal. I would be treating Judge Roberts as if he were a politician. If our federal judges were elected, that might be justified. But they are not. Telling Americans what Judge Roberts will not do, by contrast, describes honestly what we should expect of a Supreme Court justice under a Constitution of enumerated rights and powers. It also helps people to understand why they vote, or should vote, for a conservative president. If it turns out that Judge Roberts should also come to correct, in a judicious manner, the mistakes of the past, it will be delicious icing, but not the cake.
Mr. Miranda, former counsel to Senate Majority Leader Bill Frist, is founder and chairman of the Third Branch Conference, a coalition of grassroots organizations following judicial issues. His column appears on Mondays, Wednesdays and Fridays.
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