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July 21, 2005
Cautious Optimism Urged on Roberts Nomination 
Rushing to judgment on John Roberts' nomination for Associate Justice of the Supreme Court of the United States is very likely not in the best interest of the pro-life and pro-family movement. In the end, enthusiastic support for his confirmation, based on the perception that he would rule differently than Justice Sandra Day O'Connor, could come back to haunt those who engage in it. After all, his record indicates that his opinions might very well reflect hers, especially when it comes to Roe v. Wade.

In 1989, Judge Roberts became a principal deputy to solicitor general Kenneth Starr. In that capacity, he helped write a brief in the case of Rust v. Sullivan, which was a challenge to the restrictions on Title X funds for agencies engaged in family planning, prohibiting them from recommending or referring clients for abortions. Acting on behalf of the Bush administration, the lawyers involved, including then-deputy solicitor general Roberts, wrote, "We continue to believe that Roe v. Wade was wrongly decided and should be overruled." The Supreme Court's decision in that case upheld the right of Congress to prohibit federally funded family planning agencies like Planned Parenthood from promoting or performing abortions. Pro-life Americans were heartened to learn of Judge Roberts' role in that case.

Then, in 2003, during his confirmation hearings for the U.S. Court of Appeals for the District of Columbia Circuit, he was pressed for his views on Roe. At that time he said, "Roe v. Wade is the settled law of the land. . . . There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

Media reports show that he clearly stated during those confirmation hearings that the briefs he wrote or helped to write, while he was working for the solicitor general, reflected the administration he served, rather than his own judicial philosophy.

Many leaders in the social conservative community have rallied to the support of Roberts' confirmation, even though Roberts' stated view is that Roe is the settled "law of the land."

Some knowledgeable observers have made comments that should be noted. Supreme Court historian David Garrow of Emory University said that, while Judge Roberts is a conservative, he is not in the mold of Justices Antonin Scalia and Clarence Thomas. "I do not think it moves the court" that much, he said. (The Dallas Morning News, 7/20/05)

John Yoo, a professor of law at the University of California at Berkeley who served in the Justice Department earlier in the Bush administration said, "He's the type of person that business conservatives and judicial restraint conservatives will like, but the social conservatives may not like." "He represents the Washington establishment. These Washington establishment people are not revolutionaries, and they're not out to shake up constitutional law. They might make course corrections, but they're not trying to sail the boat to a different port." (The New York Times, 7/20/05)

Judge Roberts was confirmed by a near-unanimous vote (three NAYs: Schumer, Kennedy and Durbin) for the Court of Appeals just two years ago. It seems highly unlikely that many votes, if any, will change this time. He is well accepted by the Washington establishment. The pro-abortion crowd, most Democrats, and other liberals will flap around for a while in an effort to cause a stir and satisfy their donors. But, in the end, John Roberts will very likely be seated on the U.S. Supreme Court in the fall. Then, and only then, will we know which way he will go on issues that matter to us.

Article X of the U.S. Constitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Will he join with Scalia and Thomas in respecting the original intent of the Framers, or will he be a party to the consistent drive by the majority on the court to undermine the will of the people by striking down the laws passed by their duly-elected representatives in the legislatures of the 50 sovereign states?

Judge Roberts is an extremely attractive nominee with an impressive record. He will very likely turn out to be a credit to President Bush and a staunch adherent to Constitutional principles. He may provide to the court the conviction that the right to life is the first right without which we have no other. We don't know. We are not sure. Perhaps we would do well to exercise caution while remaining optimistic. After all, Roberts could turn out to be another O'Connor, or Souter, or Kennedy. If that happens, which we sincerely hope it won't, it would be most uncomfortable to have to point the finger of blame at ourselves.

Republican National
Coalition for Life

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