Leading up to the hearings, there has been a lack of interest on the part of many Democrats in opposing this nomination. Roberts has been called a moderate, and it seems as though the Democrats would prefer not to waste their ammunition on him. While that may seem like a politically expedient choice now, the consequences down the road could be disastrous.
Let's make no mistake about it: Roberts is not a moderate. Our political spectrum has moved so far to the right under the Bush administration that one might comparatively consider Roberts as a moderate. This is especially understandable considering that not much is known about his views, making him seem less flagrantly conservative than other possible nominees. However, while serving under the Ronald Reagan and George H. W. Bush administrations as a government lawyer, Roberts staked out consistently conservative positions in memos and other letters.
He has been particularly hostile to women and minorities, believing that efforts to combat gender and racial discrimination were themselves discriminatory. He mocked gender inequality, referring to it as a "perceived problem." He also sought to limit the scope of Title IX by suggesting that schools be allowed to engage in sex discrimination for programs in which they weren't receiving federal money. He also sarcastically referred to the Roe v. Wade decision as a "so-called right to privacy." Roberts' strong opposition to Roe v. Wade would mean that the conservative justices would finally have enough votes to strike down that decision.
In the civil rights arena, he fought against school busing to desegregate the educational system and tried to prevent full implementation of the Voting Rights Act of 1965 (a measure to prevent disenfranchisement of African-American voters).
In examining Roberts' fitness as a nominee, we also need to take into account what the effect of a Roberts confirmation will have on current civil rights issues. For instance, Roberts' open hostility to affirmative action could potentially result in an overturning of the University of Michigan Law School decision (which allowed race to be considered as a factor in admissions) within the next few years.
Hurricane Katrina has awakened many to the plight of the poor citizens and African-American citizens in this country. To appoint Roberts as Chief Justice of the United States would be to take a tremendous step backward. We would be appointing someone who has fought against the rights of minorities and whose privileged and sheltered life has made him unaware of the inequalities surrounding the nation.
Besides his clear opposition to women's and minority rights, Roberts has also been an outspoken critic of the Supreme Court itself. Serving as special assistant to the attorney general during the Reagan administration, he wrote about the possibility of Congress being able to strip the authority of the Supreme Court to hear certain cases. He also advocated for stripping the power of independent federal regulatory agencies. Roberts has clearly advocated an expansion of the executive branch and a weakening of the judicial branch that would result in a deterioration of the checks and balance system of the U.S. government.
To understand the effect of Roberts' position on strengthening the power of the executive, one needn't look further than the case of Hamdan v. Rumsfeld. While serving as a judge on the D.C. Circuit Court of Appeals, Roberts agreed in full with the Bush administration's ruling that the terms of the Geneva Convention don't apply to detainees held at Guantanamo Bay, and that military commissions to try detainees for war crimes are perfectly acceptable. Roberts' willingness to comply with the Bush administration's abuse of presidential power against suspected terrorists could undermine the basic freedoms that this country is supposed to represent.
The Democrats' willingness (or lack thereof) to put up a fight against Roberts' nomination will likely determine the future direction of the party. Will they simply serve as a rubber stamp, easily confirming President Bush's choice, or will they instead ask tough questions and challenge Roberts' position on critical issues?
In deciding whether to confirm Roberts, senators will likely ask themselves-"Could President Bush have appointed a more conservative nominee?" The answer to that question is probably yes. The question they should be asking themselves, however, is "Are we willing to put someone on the Court who is hostile to women's and minority rights, to the power of the Court and to a host of other critical issues-just because he isn't as bad as he could be?"
Sidman can be reached at mrsidman@amherst.edu