Groups Focus on Court Nominee’s Church-state Views

By Nathaniel Popper, With Reporting by Jta.

Published July 22, 2005, issue of July 22, 2005.
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The National Council of Jewish Women is vowing to oppose President Bush’s nominee for the Supreme Court, John Roberts, but most other Jewish groups are asking only for a careful questioning.

President Bush nominated Roberts, a judge on the District of Columbia Circuit Court of Appeals, on Tuesday night. Roberts immediately won wide praise for his intellect. Although he is considered a less ideologically rigid jurist than many Democrats had anticipated, he was opposed by some Democrats when he was nominated for his current seat in 2003.

The appointment to succeed Justice Sandra Day O’Connor is a vital one because of the swing vote that O’Connor provided, in many cases involving issues of interest to the Jewish community, including church-state separation, religious liberty, affirmative action and abortion.

Roberts’s nomination has won strong support from right-leaning Jewish organizations, but some of the briefs that Roberts wrote in his legal career have concerned left-leaning advocacy groups.

“As a lawyer he has espoused views that differ sharply from where the vast majority of the Jewish community stands,” said David Saperstein, director of the Reform movement’s Religious Action Center. “The question is whether he was just representing his client, or did he help shape these positions.”

For the majority of Jewish groups, the most central issue in front of the Supreme Court is the separation between church and state. Roberts wrote a number of provocative briefs on the topic when he worked under Kenneth Starr as the deputy solicitor general for President George H.W. Bush from 1989 to 1993.

In a school prayer case, Lee v. Weisman, Roberts co-authored a brief arguing that prayer — in this instance, conducted by a rabbi — should be allowed at a public high school graduation. The majority, including O’Connor, rejected the government’s position in a 6-3 decision. In a separate case, eight justices, including O’Connor, came down on the side of a brief written by Roberts, arguing that religious groups should have access to public-school facilities after hours. The American Jewish Committee and the Anti-Defamation League had filed briefs for the side objecting to accommodation.

Though O’Connor did not make the difference in these two cases, she served as the swing vote in several other church-state decisions.

For pro-choice groups, the major concern is Roberts’s brief in an abortion rights case, Rust v. Sullivan, that challenged certain provisions of the Roe v. Wade decision legalizing abortion. In the Rust case, Roberts wrote that “we continue to believe that Roe was wrongly decided and should be overruled.”

Because of Roberts’s work on abortion rights cases, the National Council of Jewish Women, along with many pro-choice groups, opposed his nomination in 2003, and plans to do so again.

“He hadn’t shown that he had a record of defending fundamental rights, including reproductive rights,” said Phyllis Snyder, president of the National Council of Jewish Women.

Many court watchers note that in all the briefs Roberts wrote as deputy solicitor general, he was acting on behalf of his client — the executive branch — and thus his views do not necessarily represent his own. During his 2003 confirmation hearings, he suggested that he would take a different tack as a judge.

“There’s no role for advocacy with respect to personal beliefs or views on the part of a judge,” Roberts said at the time. “The judge is bound to follow the Supreme Court precedent, whether he agrees with it or disagrees with it, and bound to apply the rule of law in cases, whether there’s applicable Supreme Court precedent or not. Personal views, personal ideology, those have no role to play whatever.”

These statements, though, were made when he was being nominated to a lower court, and many questioned whether his view of Supreme Court precedent would change once he was on the court himself.

“Does he start with a presumption that we are going to start all over again, or that what is there is binding?” asked Marc Stern, legal director for the American Jewish Congress.

With only two years on the federal court in Washington, there has been relatively little opportunity to see Roberts’s judicial approach to the Constitution. In addition, during his 2003 confirmation Roberts went through with two other nominees, allowing less time for questioning.

Roberts has spent most of his career representing clients in private practice, and many liberal groups have taken issue with the clients with whom he chose to work. When Alliance for Justice opposed Roberts’s confirmation in 2003, it pointed to his work for clients arguing against affirmative action, environmental laws and protection for people with disabilities.

The Senate Judiciary Committee, led by Senator Arlen Specter, a Pennsylvania Republican, is expected to begin hearings on Roberts later this summer. A few Democratic senators already have expressed reservations about Roberts. But he would need to win over only five Democratic senators to overcome a filibuster and win nomination.

Some of the most influential centrist politicians have indicated that this will not be a problem.

Senator Joseph Lieberman, a Connecticut Democrat, said last week that he viewed Roberts as “in the ballpark” of confirmable nominees.

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