Welcome to Republicans For Choice PAC

Overview

Roberts, 50, was appointed by President George W. Bush in 2002 to the U.S. Court of Appeals for the District of Columbia Circuit.

John Roberts has enjoyed a distinguished career in government service, private practice and, most recently, as a federal judge. He is a graduate, summa cum laude, of Harvard College and also Harvard Law School, magna cum laude. After law school, he clerked for Judge Henry Friendly on the U.S. Court of Appeals for the Second Circuit and then-Justice William Rehnquist on the U.S. Supreme Court.

Roberts has had a distinguished career as a public servant. He served in several positions in the Reagan administration, including Associate White House Counsel. He served, from 1989-93, as the Principal Deputy Solicitor General, the government’s second highest ranking lawyer before the U.S. Supreme Court.

After leaving government, Roberts quickly became known as one of the top Supreme Court advocates in the country as a partner at Hogan & Hartson in D.C. In his government and private career, he has argued 39 cases before the U.S. Supreme Court, and has been described in the media as “one of [the Supreme Court’s] finest practitioners,” (Mauro, American Lawyer, Sept. 1, 2004), “one of the top appellate lawyers of his generation,” (Groner, Legal Times, Feb. 3, 2003), and “viewed by many as the best Supreme Court advocate in private law firm practice,” (Legal Times, Oct. 30, 2000).

Marital Status: Married, two children

Record

To the extent his record as an advocate can tell anything about Roberts, his arguments often speak to judicial restraint. He co-authored the government’s successful brief in Lujan v. Defenders of Wildlife, which re-invigorated the doctrine of standing to sue in Article III Courts. At the same time, he has represented criminal defendants, environmental interests, and the State of Hawaii in a dispute over legislation favoring Native Hawaiians as a group. Characterization of his record as an advocate is difficult to do, and merely reflects the wide range of clients he has represented.

Judge Roberts has authored about 40 opinions, but only three of his opinions have drawn any dissent. Two of those cases involved rather arcane issues of statutory interpretation (e.g., availability of attorneys’ fees and interpretation of the False Claims Act), and in one case, Roberts (joined by Ginsburg) was criticized by Judge Henderson for being too lenient on a sentencing issue. Similarly, though he has sat on numerous other three-judge or en banc panels, he has written dissenting opinions in only two cases. (2) This record hardly demonstrates a judicial philosophy outside the mainstream. His record as a judge reflects a philosophy of judicial restraint, recognizing the limited role of the judiciary and a healthy deference for the political branches of government.

Attack:

Roberts is pro-life.

Opponents will undoubtedly argue that Roberts is hostile to abortion rights based on a pair of briefs on which Roberts appeared while Deputy SG (a) Rust v. Sullivan and Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993). Roberts’ opponents have argued that Roberts unnecessarily called for the Supreme Court to overturn Roe v. Wade in Rust, a case challenging federal regulations which prohibited certain receipients of federal funds from counseling patients on abortion. Critics argue that the case could have been argued solely on the basis of statutory construction of the provisions at issue. Critics also point to Roberts’ co-authoring the government’s amicus brief in Bray, a private suit brought against Operation Rescue, which argued that Operation Rescue was not engaged in a conspiracy to deprive women of equal protection rights.

Defense:

· Judge Roberts has not decided any cases involving abortion, and it would be irresponsible to speculate on how he might rule in such a case.

· In both cases, Roberts, as one of several attorneys on the brief for the government, was simply arguing the position of the United States, his client.

· Critics who attack Roberts’ unstated views on abortion are simply attempting to impose a religious litmus test on nominees, i.e., practicing religious (especially Christians) need not apply. This is the same scurrilous attack on several of the President’s lower court nominees, such as Bill Pryor, and has no place in modern politics.

Attack:

Roberts is a right-wing extremist

The People for the American Way have sought to brand Roberts as both a right-wing extremist and anti-environmentalist as a result of his dissent from the denial of rehearing en banc in Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003). In Rancho Viejo, a real estate development company challenged the Department of Interior’s application of the Endangered Species Act to stop a project that “was likely to jeopardize the continued existence of the arroyo southwestern toad.” The case principally involved an attack on Congress’ power to regulate what appeared to be completely intra-state activity. The left’s attack focuses on how Roberts’ view of Commerce Clause jurisprudence would have prevented the arroyo southwestern toad’s protection from these particular developers. (Judge David B. Sentelle also authored a separate dissent to the denial of en banc review).

Defense:

· The Mission Viejo case involved a Fish and Wildlife Service order to a developer to move a fence from its own property in order to accommodate the movement of southwest arroyo toads, a non-migratory species.

· In light of recent Supreme Court decisions scaling back what was once viewed as Congress’ unlimited power over interstate commerce, the federal government really had any authority to regulate such non-commercial activities as the movement of a toad.

· The government should not regulate every aspect of every transaction in commerce that does not have an interstate component. It makes little sense to conclude that “regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce ... among the several States.”

Attack:

Roberts is anti-environment

Opponents will again state that Roberts’ successful argument on behalf of the government in Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992), indicates a callous disregard for the environment. They will cite as support his recent decision, writing for a unanimous panel, which included Judges Henderson and, significantly, Tatel, in Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004), holding that the EPA’s actions in using particulate matter as a substitute for hazardous air pollutants in regulating emissions from copper smelters were reasonable, despite being arguably different than regulations applied to a different industry.

Defense:

· Characterization of this ruling as anti-environment or pro-environment is irresponsible and misrepresents the issues before the Court. The government’s position in Lujan demonstrated a healthy respect for the proper division of power between the Courts and Congress.

· Roberts’ upheld precedential standing doctrines by requiring plaintiffs to demonstrate an injury-in-fact that was not apparent in the record before the Court.

· In private practice Roberts successfully represented environmentalists fighting development around Lake Tahoe in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, in which the Court adopted Roberts’ position against those of the developers and property owners, over the dissent of Rehnquist, Scalia, and Thomas.

Attack:

Roberts is hostile to civil rights and affirmative actions

During his confirmation to the D.C. Circuit, left-wing activist groups accused Roberts of being hostile to civil rights and affirmative action, citing the following cases in which Roberts co-authored briefs while in the Solicitor General’s office: (a) Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991) (this brief, according to the Alliance for Justice, “sought to weaken the standard and limit the timeline for court-enforced desegregation decrees in the nation’s schools”), and (b) Freeman v. Pitts, 503 U.S. 467 (1992) (according to the Alliance for Justice, this brief successfully argued “to lower the bar for the proof that school systems that had previously engaged in de jure discrimination had to show in order to obtain the court’s revocation of a desegregation decree

Defense:

· Judge Roberts’ record as a Supreme Court advocate cannot be easily characterized as either pro- or anti-civil rights. As a private practitioner, he represented the Governor of Hawaii in defending the State’s preferential treatment of Native Hawaiians in Rice v. Cayetano.

· Roberts co-authored the government’s brief in U.S. v. Mabus, 1991, arguing that Mississippi continued to propagate a “dual system” of racially segregated public universities in violation of the Equal Protection Clause and the 1964 Civil Rights Act.

· His record as an advocate is quite balanced and reflects the fact that he represented a wide array of clients with a broad set of interests.

Attack:

Roberts is hostile to the rights of criminal defendants

In his confirmation hearings, opponents argued that Roberts’ participation on behalf on the government in two amicus briefs indicates a desire to limit the rights of criminal defendants. See Denton v. Hernandez, 504 U.S. 25 (1992) (amicus brief arguing that the Ninth Circuit test to permit a court to dismiss an in forma pauperis complaint only if it could take judicial notice that the facts alleged did not occur was too stringent); Burns v. U.S., 501 U.S. 129 (1991) (amicus brief arguing that no advance notice to defendant was required for an upward departure from sentencing guidelines).

Defense:

· Roberts’ record on criminal rights is much more balanced than his critics suggest.

o Roberts wrote for a unanimous panel (Randolph, Williams, Roberts) in Warren v. District of Columbia, 353 F.3d 36 (D.C. Cir. 2004), holding that a pro se prisoner had stated a 1983 claim for relief, based in large part on the fact that “pro se prisoner complaints should be ‘liberally construed’”

o Roberts represented many criminal defendants on a pro bono basis while in private practice, including his pro bono representation of the defendant in U.S. v. Halper, 490 U.S. 435 (1989), in which he argued successfully that the Double Jeopardy Clause barred imposition of civil penalties under federal law against an individual who had already been convicted and punished under federal criminal law for the same conduct.

Attack:

Roberts is hostile to the First Amendment’s Establishment and Freedom of Speech Clauses

Opponents have argued that Roberts supports an expanded role of religion in schools, citing two briefs he co-authored while with the Solicitor General’s office: Lee v. Weisman, 505 U.S. 577 (1992) (arguing that public high schools should be allowed to conduct religious ceremonies as part of a graduation program); Mergens v. Westside Community School District, 496 U.S. 226 (1990) (arguing that barring a religious group from meeting on school grounds violates the Equal Access Act, while granting access does not violate the Establishment Clause). In addition, opponents have cited Roberts’ brief in U.S. v. Eichman, U.S. v. Haggerty, 496 U.S. 310 (1990), arguing that the 1989 Flag Act, which prohibited burning the U.S. flag, did not violate the First Amendment. The Court subsequently held 5-4 that the Flag Act was unconstitutional.

Defense:

· Judge Roberts’ position in the flag burning case, for instance, merely involved the defense of a federal statute, a role that the Justice Department is obligated to undertake so long as there is a good faith defense available. The positions espoused in these cases are well within the mainstream of legal thought.

Attack:

Roberts is an “extremist” in the mold of Scalia and Thomas

This is likely to be the most pervasive attack against Roberts, along with his religion, and is the underlying political subtext for all issue-based attacks (see, e.g., Statement of Senator Edward Kennedy on Confirmation of John G. Roberts, Wednesday, April 30, 2003). Support for this allegation will be found in every decision or writing that can reasonably be construed as restraintist or strict constructionist in flavor, or that has Roberts agreeing with Scalia or Thomas, regardless of the reasoning.

Defense:

· In the Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, the Court adopted Roberts’ client’s position against the rights of property owners and over the dissent by Scalia, Rehnquist and Thomas.

Attack:

Roberts Consistently Sides with Corporations over Unions and Workers’ Rights

Opponents may focus on Roberts’ private practice client base, which had him representing many corporations in various matters, often against labor unions.

Defense:

Roberts has represented all types of clients, including environmental groups, criminal defendants and the government. His representation of corporations in union disputes is not unusual for a seasoned appellate advocate. Moreover, he has authored briefs that sought to expand the rights of employees.

Attack:

Roberts supports the Bush Administration’s unparalleled secrecy

Roberts voted in favor of the D.C. Circuit’s en banc review of the decision in Sierra Club and Judicial Watch v. Cheney – the National Energy Policy Development Group case where interest groups sought to obtain communications and internal deliberations of the Vice President’s group that was constituted to advise the President on national energy policy. En banc review was denied and Sentelle, Randolph, and Roberts submitted a dissent to the denial.

Defense:

Roberts’ view in his en banc dissent was vindicated by the Supreme Court.

In a 7-2 decision authored by Justice Kennedy, the Supreme Court granted review and vacated the district court’s decision giving the interests groups access to the Vice President’s records. The case was remanded for further proceedings in the D.C. Circuit, which affirmed the Vice President’s position and dismissed the case by an 8-0 vote.

(2) One of those was a dissent from a denial of en banc rehearing. Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003 The other, a recent decision in a case involving a Department of Labor union reporting rule, was only a partial dissent. United States ex rel. Totten v. Bombardier Corporation, 380 F. 3d 488 (D. C. Cir. Aug. 27, 2004).

Home

Republicans for Choice | 205 South Whiting Street, Suite #260 | Alexandria, VA 22304 (703) 212-0890 | gop4choice@erols.com

"This Republicans For Choice committee is a political action group and is not a part of, or affiliated with, Planned Parenthood."