CROUCHING ROBERTS,
HIDDEN AGENDA
A selective guide to the Roberts nomination process

By Nancy Goldstein | RAW STORY COLUMNIST

Like the novels of Jane Austen, or much of American art since 1945, the nomination process of John Roberts to the post of Chief Justice of the Supreme Court is best enjoyed in context. Sadly, this brief, highly selective guide will not explain why Pride and Prejudice’s Darcy is such a catch, or why Jasper Johns’ decision to stack three American flags atop one another constitutes genius. It does, however, offer insight into some of the key issues and phrases at play in the confirmation hearing and vote.

Summary, or what’s at stake here?

Never mind their increasingly poor ratings in the polls: Republicans have successfully used their control of the White House (the executive branch) and Congress (the legislative branch) these past 5 years to push through an agenda that reads like a wealthy, corporate, right-wing, anti-New Deal, fundamentalist-fueled wet dream.

Now they want total control of the third branch too — the judiciary. While the judiciary has usually done well by the right-wing under the guidance of recently-deceased Federalist Society poster boy Chief Justice Rehnquist and his stalwarts — Scalia, Thomas, and Souter — it has also been a bit of a wet blanket. Conservatives have been frustrated by the court’s refusal to overturn Roe v. Wade, roll back affirmative action, strike down Title IX (the law that bars sex discrimination in intercollegiate athletic programs), allow the execution of minors and the mentally retarded, criminalize queer sex, or entirely dismantle church/state separation.

Roberts is here to change all that.

As the Washington Post notes, during his tenure as special assistant to the Attorney General under Reagan, Roberts “defended bills in Congress that would have stripped the Supreme Court of jurisdiction over abortion, busing and school prayer cases; he argued for a narrow interpretation of Title IX, the landmark law that bars sex discrimination in intercollegiate athletic programs; and he even counseled his boss on how to tell the Rev. Martin Luther King Jr.'s widow that the administration was cutting off federal funding for the Atlanta center that bears his name.”

Conservatives are thrilled by this young-ish yes man with a penchant for executive privilege and a wife who used to head an anti-choice organization. Liberals and progressives, many of whose greatest victories have been enacted through federal legislation and the judiciary, are not.

That’s why there’s so much talk, especially when Kennedy has the floor, about Brown v. Board of Education (1954), which ended school segregation over the objections of many Southern states; the Civil Rights Act (1964) that outlawed racial discrimination in public accommodations, employment, and other areas; and the Voters Rights Act (1965, with an extension in 1982) that eliminated barriers to voting that many people of color had routinely faced.

Glossary: If you feel like much of what is being said during this process is happening in code, it’s because it is. You’ll be hearing quite a bit of the following terms and phrases:

Humble and modest: When Roberts uses these terms to describe his approach to the law, he’s not saying that he’s a laid-back kind of guy. He’s signaling his belief that the judiciary branch should cede power to the executive and legislative branches.

Unelected judges: A pet phrase of the right, especially Senator Orrin Hatch of Utah. This clever term points out that judges are cleared for their posts on the federal level by legislators elected by the people rather than by the people themselves. It’s also meant to imply that this makes judges inherently less trustworthy and less deserving of power than elected officials. After all, who are you going to trust? Someone who enjoys a lifetime position that could, potentially, free him or her to reconsider their opinions without fearing for their livelihood or an elected official who needs to pander to his or her base to get re-elected every 4 years?

Activist judges: Activist judges are judges whose rulings conservatives don’t like. For example, Judge Richard Kramer, the Republican, Catholic judge from San Francisco who ruled last March that gays and lesbians have the right to marry in California, despite a law and a voter-approved measure declaring marriage to be the exclusive realm of heterosexuals, is an activist judge. Judge Frank Quesada, who ordered doctors to resume feeding Terri Schiavo while her parents pursued their lawsuit against Michael Schiavo is just a good public servant doing his job.

Framers’ intent: This is the phrase Roberts uses when he wants to signal that he is a purist, impervious to such muddying factors as time, culture, or ideology, when he reads the Constitution. Which doesn’t go very far towards explaining why most of his legal opinions fail to protect the minority from the majority.

I was only following orders: This, in essence, is Roberts’ answer whenever a member of the Judiciary Committee nails him on the views he defended while assisting the Attorney General under Reagan. It’s meant to imply that his snarky remarks about voting rights and affirmative action are simply evidence of his being a malleable young yes man in the past, not proof that he’ll be a bigot in the future.

What is at stake in the Roberts nomination proceedings is not only the future of these decisions, or the Supreme Court, but the entire system of checks and balances that has prevented an all-out conservative takeover of the government.

So don’t tune out. Watch them with that in mind. And call your senators early and often.