Monday, September 19, 2005

Nominee Roberts Still Giving Wishy-Washy Answers

(Link) If he makes the cut, Roberts will be wearing those Supreme Court robes for a long time and making big decisions that afffect us all. So far, the closest he's come to saying he wouldn't overturn Lawrence vs Texas is that he believes "the U.S. Constitution protects the right of privacy."

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LNewsEditor said...

JIC Post:
By Lou Chibbaro, JR
Washington Blade

udge John G. Roberts Jr. disclosed for the first time this week that he believes the U.S. Constitution protects the right of privacy, but legal experts said his carefully guarded comments gave no indication of whether he feels the doctrine should include gay civil rights.

Roberts discussed his views on privacy rights and a wide range of other subjects during the second day of the Senate Judiciary Committee’s confirmation hearing on his nomination to the Supreme Court as the nation’s 17th Chief Justice.

The Supreme Court’s landmark 2003 case of Lawrence vs. Texas cited constitutional privacy right protections as the basis for overturning the 1986 case of Bowers vs. Hardwick, along with state sodomy laws that for years defined sexual relations among gays as criminal acts. Gay rights attorneys have said constitutional privacy rights are pivotal to future gay rights cases, including cases seeking to legalize same-sex marriage.

“Do you believe today that the right to privacy does exist in the Constitution?” asked Senator Arlen Specter (R-Pa.), chair of the Judiciary Committee, during the Sept. 13 session.

“Senator, I do,” Roberts said. “The right to privacy is protected under the Constitution in various ways.”

In discussing his understanding of privacy rights, Roberts pointed to the Constitution’s First, Third and Fourth Amendments, which are part of the Bill of Rights. Among other things, they protect citizens against improper searches and seizures by the government, protect against restrictions of freedom of speech and assembly, and prohibit the establishment of an official state religion.

Roberts added that in the past 80 years, the Supreme Court has recognized the concept of “personal privacy,” as protected under the Due Process Clause of the Fourteenth Amendment. The high court used this concept of privacy as the basis for its 1972 decision in Roe vs. Wade that legalized abortion, as well as its Lawrence decision overturning sodomy laws, considered to be the court’s most sweeping ruling on gay rights.

But Roberts did not reveal whether he personally supports the “personal privacy” doctrine as it applies to Roe vs. Wade.

New York Sen. Chuck Schumer (D) asked Roberts whether he agreed with Justice Clarence Thomas’ dissent in the Lawrence case, in which he refused even to recognize a general right to privacy. (see sidebar)

Roberts agreed with Schumer there was a “substantive right of privacy but would not say if he agreed with Thomas or with the holding in Lawrence, citing his general policy of not stating his views on specific cases.

Mixed reviews
Gay rights attorneys and legal observers, including senators on the Judiciary Committee, had differing views on the significance of Roberts’ views on privacy rights.

Lara Schwartz, an attorney and chief legislative counsel for the Human Rights Campaign, said the privacy rights associated with the First, Third and Fourth Amendments are universally accepted by conservatives as well as liberals. Schwartz said Robert’s cautiously worded comment on personal privacy linked to the 14th Amendment — which the Supreme Court cited in the Lawrence decision — did not indicate whether he supports such rights.

Schwartz’s made her comments before Schumer’s give and take with Roberts on the Lawrence case.

Arthur Spitzer, legal director of the American Civil Liberties Union of the D.C. area, echoed Schwartz’s view.

“No one has ever said the Constitution does not protect some privacy,” Spitzer said. “The question is whether the Supreme Court finds privacy rights elsewhere in the Constitution to protect against the government’s intrusion into sexual relations in your bedroom.”

Schumer told Roberts he was troubled that the Supreme Court nominee declined to state his views on a number of key issues, including whether he supports the Roe vs. Wade decision. But on Roberts’ comments about privacy rights, Schumer added, “I have to say I’ve been pleasantly surprised by some of your answers today.”

Added Schumer, “In my view, over the past 60 or 70 years, maybe longer, three legs have sustained our constitutional rights: the Fourteenth Amendment’s guarantees of equal protection and substantive due process, the right to privacy, and a broad delegation of authority to Congress to pass legislation … necessary to protect national security, the environment, Americans’ health, and workers’ civil rights. On the first two, you have given answers that I think show that you want to protect those rights.”

Prior to Tuesday’s hearing, public knowledge of Roberts’ views on privacy rights were limited to memos he wrote in the 1980s as an assistant attorney general in the Reagan administration. In those memos and other legal papers, he derided the concept of privacy rights and was highly critical of the Supreme Court decision of Roe vs. Wade, which cited privacy rights as the basis for overturning state laws prohibiting abortions.

Justices voting with the majority on the Supreme Court in the 6-3 Lawrence decision cited Roe in a line of cases as precedents for overturning sodomy laws.

In response to Specter’s questions, Roberts said his memos during the Reagan presidency reflected his role as an advocate for a conservative administration. He said his often quoted memo characterizing privacy rights as an “amorphous” right that could not be found in the Constitution referred to a statement by someone else.

President Bush nominated Roberts, a federal appeals court judge for the District of Columbia Circuit, to fill one of two Supreme Court seats that became vacant following the retirement of Justice Sandra Day O’Connor and the death of Chief Justice William Rehnquist. Bush has yet to nominate someone to fill O’Connor’s seat.

Civil rights leaders, including gay civil rights advocates, have expressed concern that Roberts and the next nominee Bush will name could tip the balance of the often closely divided high court in favor of a more conservative body hostile to the rights of gays and other minorities. Four gay rights groups, including HRC, the National Gay & Lesbian Task Force, the National Center for Lesbian Rights, and Parents Families & Friends of Lesbians & Gays (PFLAG) announced their opposition to Roberts even before Bush re-nominated him for chief justice.

Conservative activists and religious right groups have called on Bush to alter the court’s makeup, with the objective of ensuring that the court will soon overturn Roe vs. Wade as well as Lawrence vs. Texas.

As of early Wednesday, when the Judiciary Committee began its third day of Roberts’ confirmation hearings, senators on the panel had largely ignored a set of 30 gay-related questions that the national gay group Lambda Legal Defense & Education Fund urged the senators to ask Roberts.

Lambda’s list included specific questions about Roberts’ views on the Lawrence decision and the 1996 decision of Romer vs. Evans, another landmark gay ruling.

The Romer ruling overturned a Colorado State constitutional amendment barring the Colorado legislature or any of its cities and towns from passing laws protecting gays from discrimination.

Michael Adams, a spokesperson for Lambda, said that while senators had yet to specifically raise most of Lambda’s proposed questions for Roberts, senators did raise issues surrounding privacy rights and the Roe vs. Wade and Griswold vs. Connecticut cases — three key questions on Lambda’s list.

The Griswold case, issued by the high court in the 1960s, overturned a Connecticut law that banned the sale and use of contraceptives. The decision limited its scope to contraceptive used by married people, but was later extended to all unmarried adults. The court cited Griswold in both the Roe and Lawrence decisions.

Roberts said he supports the court’s ruling on Griswold, one of the few instances in which he disclosed his views on a specific case.

“For the most part, Roberts has engaged in a dodge and weave action,” Adams said.

Adams said Roberts’ disclosure that he supported the Griswold and Brown decisions would likely help Roberts win confirmation to chief justice because it suggested he was a moderate on at least some areas of privacy rights and civil rights.

Specter was the only senator to mention gay rights during Tuesday’s hearing session when he asked Roberts about his decision to provide pro bono legal advice to gay rights lawyers who argued the Romer vs. Evans case, which overturned the anti-gay amendment in Colorado. However, Specter limited his question to why Roberts chose to help a “gay rights” case and didn’t ask Roberts if he agreed with the court’s decision on the case.

“Every good lawyer knows that if there is something in his client’s cause that so personally offends you, morally, religiously … then you shouldn’t take it on,” Specter quoted one of Roberts’ colleagues in his law firm as saying. Specter noted that the colleague said Roberts expressed no such moral objection to taking that case.

“Does that accurately express your own sentiments” in working on a ‘gay’ case?” Specter asked Roberts.

“I was asked frequently by other partners to help out, particularly in my area of expertise, often involving moot courting,” Roberts said. “And I never turned down a request. I think it’s right if there had been something morally objectionable, I suppose I would have [declined the case],” Roberts said.

“But it was my view that lawyers don’t stand in the shoes of their clients and that good lawyers can give advice and argue any side of a case,” he said.