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2000 television interview with John Roberts might provide insight into judicial philosophy

NASHVILLE, Tenn. (BP)–A five-year-old television interview with Supreme Court nominee John Roberts that aired again Aug. 7 provides insight into his conservative judicial philosophy, interest groups on both ends of the spectrum say.

The interview took place at the end of the court’s 2000 term and in the midst of the presidential election between George W. Bush and then-Vice President Al Gore. It originally aired on Dallas television station WFAA, and segments of it were re-broadcast Aug. 7 on ABC’s “This Week.”

In the interview Roberts, then working as a private practice attorney, seemed to suggest that he would favor prayer in school settings as long as it was student-led. He also called the court’s Boy Scouts of America v. Dale ruling — which allowed the Scouts to prohibit homosexual leaders — an “important” First Amendment victory for conservatives. But Roberts did not explicitly outline his personal views in either case. He also never referred to the conservative movement as “we,” even though he was on the panel supposedly to represent the conservative viewpoint.

Asked to analyze the 2000 court session, Roberts said, “[T]aking this term as a whole, I think the most important thing it did was make a compelling case that we do not have a very conservative Supreme Court. Take the three biggest headline cases — Miranda, school prayer, abortion. [The] conservative view lost in each of them.”

In those cases, the court reaffirmed its 1966 “Miranda rights” decision, ruled that prayer was not allowed at a Texas high school football game and overturned a Nebraska law that had banned partial-birth abortion.

“I think the argument about government-sponsored, government-initiated prayer in schools is over,” Roberts said in response to a question. “But that’s not necessarily all that we’re talking about. The test, as I see it, is, if the prayer is genuinely student-initiated, student-led and does not look like something the government — the school district — is sponsoring, then it’s going to be alright. But if the government is involved either in initiating it or sponsoring it, then you run into trouble.”

Jay Sekulow, chief counsel of the conservative American Center for Law and Justice, said the interview is good news.

“The television interview makes it clear that John Roberts embraces a sound and welcomed judicial philosophy: Judges must not legislate from the bench and must interpret the Constitution,” Sekulow said in a news release. “… In concluding that we ‘do not have a very conservative Supreme Court,’ Roberts acknowledged what is now very clear -– there has been a shift in the way the high court views some of the most important social and political issues of our day. The analysis and comments provided by Roberts underscore his judicial philosophy of interpreting the Constitution, not re-writing it.”

Liberal groups, though, weren’t so happy. People for the American Way released a statement saying the interview “suggests” that Roberts want to see the court “move to the right.” Especially perplexing to PAW were his comments on the court not being “very conservative,” because the group thinks it is conservative enough.

“It is clearer than ever that the confirmation of John Roberts would mean replacing Sandra Day O’Connor with someone who has viewed her as an impediment to the ultraconservative legal movement he helped lead as a political appointee during the Reagan and first Bush administrations,” People For the American Way President Ralph G. Neas said in a statement.

Roberts, whose confirmation hearings are scheduled to begin Sept. 6, was asked if the “basic right to abortion” was now “sacrosanct.”

“Well,” he responded, “[in] the partial-birth abortion case, one thing that did happen is that Justice [Anthony] Kennedy dissented from that ruling. Of course, he was part of the Casey triumvirate back in ’92 [that affirmed Roe v. Wade]. He saw a distinction between the procedure in this case and the basic right to an abortion in Roe vs. Wade. And Justice [Sandra Day] O’Connor, in her concurring opinion, basically laid out a road map and said if states want to pass laws banning what people call partial-birth abortion, here’s what you have to do to pass constitutional muster. So I don’t think that debate is over. I think it’s just starting a new round.”

Roberts also disagreed with Democratic politicians and liberal groups, who in 2000 were saying that Roe v. Wade was only one vote away from being overturned. The partial-birth abortion case was decided on a 5-4 ruling, with Kennedy voting with the majority. Roberts said Kennedy favored Roe but also favored restrictions.

“[T]hat right is protected right now by more than just one vote,” Roberts said.

Roberts was asked to point to “significant conservative victories” from the court’s session.

“Well, there were some important victories in the First Amendment area,” he said. “For example, the Boy Scouts case: People have the right to form groups like the Boy Scouts to promote particular values, and they can exclude people who don’t share those values.”

Roberts’ affirmation of that opinion would be significant, especially in light of a Los Angeles Times report that he provided several hours of pro bono (donated) work to homosexual activist groups for one case in the mid-1990s. A colleague had asked Roberts to help out with the case.

Southern Baptist ethicist Richard Land said during a TV interview Aug. 8 that the revelation was not hurting Roberts’ support among Christian conservatives.

“Lawyers take an oath to do the best they can to defend their clients,” Land, president of the Ethics & Religious Liberty Commission, said on FOX News’ “Hannity and Colmes.” “He had a colleague who had taken this case. [Roberts] had a standard policy of providing pro bono help to colleagues who were defending cases. He gave between five and 10 hours of time in counsel to a colleague, which was his general practice…. He’s a lawyer and he did what lawyers do. And when he becomes a Supreme Court justice, his client will be the Constitution, and he will defend it to the best of his ability. He’s a strict constructionist, an original intent jurist. That’s clear from his record. That’s who we want.”

Some conservatives have expressed concern that enough isn’t known about Roberts and that he might become another “stealth” liberal nominee. They note that Republicans have nominated seven of the nine justices, but only three are reliable conservatives.

“None of those [seven] Supreme Court justices were nominated by George W. Bush, and George W. Bush has kept no promise more faithfully than refusing to back down and only nominating strict constructionist, original intent jurists,” Land said. “And I believe he’s done that in this case, and I think the judicial record, as opposed to the client record … of Judge Roberts shows this.”

Interestingly, Roberts was asked how the court could issue liberal rulings when Republican presidents have dominated the nominating process.

“Well, it’s an old story that the appointees, once they’re on the court, they tend to go their own way, and it’s not always the way that the presidents who appointed them predicted would be the case,” Roberts said.
The interview can be viewed online at:
http://www.wfaa.com/sharedcontent/dws/news/washington/stories/080805dnnatroberts.8a3fbc6.html (free registration is required)

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  • Michael FoustBaptist Press