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For now, pro-lifers may have edge against liberal groups on Roberts’ nomination

Updated July 21, 2005

WASHINGTON (BP)–The nomination of John G. Roberts to the Supreme Court appears at the outset to have provided pro-life advocates with a clear advantage in the latest skirmish in the ongoing conflict over abortion.

In their initial responses after President Bush announced his selection of Roberts, pro-life organizations and conservative senators appeared to be united in their support of the federal appeals court judge. While most abortion rights organizations kicked off campaigns opposing Roberts, their allies in the Senate seemed to be handicapped by a lack of evidence needed to prove the nominee will be an additional vote against legalized abortion.

Roberts does not have the paper trail some potential nominees have. Unlike Fifth Circuit Court of Appeals judges Emilio Garza and Edith Hollan Jones, Roberts has not attacked Roe v. Wade, the high court’s 1973 opinion legalizing abortion, in his writings from the bench. He has only been a judge since 2003, when he was confirmed to the District of Columbia Circuit Court of Appeals, and has yet to address the controversial issue in a case.

So far, the examination of Roberts’ view of abortion rights has been focused on two interactions with the issue. In the first President Bush’s administration, Roberts helped write a brief on behalf of the Department of Justice telling the Supreme Court it continues “to believe that Roe v. Wade was wrongly decided and should be overruled.” In his confirmation hearings in 2003, however, he said as a potential appellate judge, “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.”

Despite that comment, abortion rights groups fear Roberts, as a justice unbound by precedent, will vote to overturn Roe. In spite of that same comment, pro-lifers are lining up behind his nomination. For pro-lifers, it is a matter of his view of the Constitution. Even without a commitment by Roberts on Roe, they appear content to trust his judicial philosophy.

“The pro-life and pro-family movement has never demanded anything more, but is unwilling to accept anything less, than constitutionalist judges …,” law and ethics specialist Robert George told reporters in a July 20 conference call. “By constitutionalist judge, what we mean, and have always meant, is a judge who recognizes the distinction between interpreting the law and making the law and, together with that, understands that in a system of limited government, judges too are under the rule of law. They don’t simply make up the law. They are constrained by the constitutional limits of their own power and they must avoid usurping the power of the elected representatives of the people and thus violating the constitutional principles of deliberative democracy that we have.

“It’s clear from the record that Judge Roberts is a constitutionalist judge,” said George, a member of the President’s Council on Bioethics. “That means that the president has kept faith with his pledge to appoint such a person to the Supreme Court … so this is an appointment the pro-life and pro-family movement should applaud.”

Even activist organizations, such as Operation Rescue and the Pro-life Action League, joined the pro-life establishment in endorsing Roberts’ nomination.

Joe Scheidler, national director of the Pro-life Action League, said Roberts is “exactly the kind of judge I want to appear before.” Roberts may indeed rule on an abortion case that bears the pro-life leader’s name, National Organization for Women v. Scheidler, in the next term. The case, which has already been before the high court twice, involves the use of a federal racketeering law against pro-life demonstrators.

Roberts “believes in the U.S. Constitution,” Scheidler said in a written release. “I don’t just have a personal interest in this nomination. [Roberts] would help to stem the tide of judicial activism that has brought ruin to our country.”

Some Senate Democrats have already signaled they will seek specifics from Roberts on abortion.

They will insist on “straight answers” on abortion, said Sen. Richard Durbin of Illinois, according to the Associated Press.

“If he wants to be on the Supreme Court, he has to be more forthcoming … to convince the American people that a man who could serve on the court for 20 to 30 years really is in the mainstream of American thinking,” said Durbin, a member of the Judiciary Committee, which will hold hearings on Roberts’ nomination.

Focus on the Family founder James Dobson was asked by a reporter on the July 20 conference call if he was afraid Roberts might turn out to be another David Souter, the 1990 nominee by the first President Bush who has been a supporter of abortion rights. At the time, pro-lifers received assurances Souter could be trusted on the court.

“I don’t think that there’s any evidence that he’s going to be another Souter,” Dobson said. “Justice Souter was what’s called a black box. No one knew what was in it. I think we do know a lot about Judge Roberts…. We feel much more comfortable with this nomination than we would have with Justice Souter.”

On the conference call, however, George issued a warning.

“[T]here is no guarantee with an originalist or a constitutionalist judge that that judge will always rule in favor of the conservative side in a political debate, nor should there be any guarantee,” George said. “The task of the judge is not to give victories to liberals or conservatives but to faithfully interpret the Constitution and apply its norms. We again are not looking for someone who will simply award victories. We are looking for somebody who will interpret the Constitution faithfully and let the democratic process work.”