The nomination of John Roberts raises important questions
about the future of the Supreme Court. But as a progressive
environmentalist, I would rather have Roberts and genuine
questions than another one of the judges on President Bush's
short list and a lot of bad answers.
Roberts is a conservative. He has worked for conservative
presidents and, in doing so, advanced conservative legal positions
before the Supreme Court. In his short tenure as an appellate
judge, he has written some troubling judicial opinions, including
one in a very important Endangered Species Act case that suggests
he has an unduly restrictive view of congressional power under
the all-important commerce clause of the Constitution -- the
basis for federal protections for the environment, workers
and civil rights.
But there are critical differences between Roberts and the
others on Bush's short list for Justice Sandra Day O'Connor's
seat. Indeed, I direct an organization that has vigorously
opposed a number of Bush's appellate court nominees because
of their hostility to environmental safeguards. I was prepared
to immediately oppose some of the people on the short list.
Roberts is different.
Unlike Judge Michael Luttig of the 4th Circuit, who once opened
an opinion by literally rewriting the preamble of the Constitution
to create a more limited government than the Constitution
actually establishes, Roberts has a fairly limited judicial
record that is devoid of rhetorical excess. Whereas Judge
Edith Jones of the 5th Circuit has a reputation for being
combative, particularly to plaintiffs' lawyers appearing before
her court, Roberts has a quiet, thoughtful demeanor that one
of his colleagues described as "Midwest calm." In
contrast to Judge Janice Rogers Brown of the D.C. Circuit,
who made a name for herself by delivering bombastic speeches
that thrill the libertarian right, Roberts made his reputation
largely on his undisputed skills as a litigator representing
clients in cases before appellate courts and the Supreme Court.
I have particular knowledge about one of these cases, having
worked on it. In 2002, the property rights movement was at
its zenith; developers had won a string of Supreme Court victories
that undercut environmental and land-use laws across the country.
That year, the court agreed to hear a challenge to a carefully
crafted consensus plan to save Lake Tahoe from the damaging
effects of overdevelopment. Facing the prospect of a devastating
defeat, the Tahoe Regional Planning Agency did a very smart
thing: It hired the best conservative Supreme Court advocate
it could find. That advocate was Roberts, and he wrote the
best legal brief I've ever read in a takings case. His argument
in front of the court aimed at and won the court's two swing
votes, O'Connor and Justice Anthony Kennedy, resulting in
a surprising and broad Supreme Court victory that stopped
the takings movement in its tracks.
Does this prove that Roberts is a fan of environmental safeguards?
No. Indeed, his few judicial opinions on these kinds of laws
suggest he's skeptical about them. But his work on the Tahoe
case does demonstrate that he has the ability to see both
sides of a divisive issue. This is a critical quality for
a Supreme Court justice. Roberts's combination of intellect,
skill, and open-mindedness should temper, at least somewhat,
anxiety about his nomination.
Facts may emerge during the confirmation process that lead
me to oppose John Roberts's confirmation. And the burden remains
on Roberts to explain to the Senate what type of justice he
will be if confirmed to the Supreme Court. His judicial opinions
to date raise concerns about undue deference to the executive
branch and suspicion about the reach of Congress's powers.
We really know very little about the philosophical approach
he will bring to the job of Supreme Court justice.
The administration must produce documents from Roberts's years
in public service. Senators must ask appropriate questions
and withhold their consent until they receive a full and careful
explanation of his judicial views and philosophy. Too much
is at stake for anything less.
Roberts is not the Supreme Court justice I would choose. But
before Senate hearings begin, I'm open to the possibility
that he will not be what I most fear.
The writer is founder and executive director of Community
Rights Counsel, a nonprofit, public-interest law firm in Washington.