WASHINGTON, D.C. – Judge John G. Roberts Jr. has repeatedly stated that he is a “modest” judge whose greatest professional wish is to protect the U.S. Constitution. Prior to the death of Chief Justice William H. Rehnquist, civil rights activists and watchers were unconvinced by what they felt were Roberts’ repeatedly vague answers to frequently pointed questions. With the death of Rehnquist and resulting decision by President George W. Bush to promote Roberts as his choice to become the 17th chief justice of the United States, the concerns of skeptics and critics have only deepened.Both Republican and Democratic members of the Senate Judiciary Committee appointed to question the high court candidate have found themselves under increased pressure to gain clarity about Roberts’ views on an assortment of hot issues, including abortion, sexual and racial equality, presidential war powers, assisted suicide, medical marijuana, the Voting Rights Act, and the detention of suspected terrorists. Yet, in spite of often pointed questions, Roberts has proven an elusive target, generally preferring to serve up broad and supremely cautious statements concerning judicial philosophy rather than provide concrete answers. At issue in the process, according to the 50-year-old jurist, is the need for him to maintain what he considers proper judicial ethics by not discussing past decisions that may return to the court in future cases.
This explanation has not reassured court watchers on either end of the philosophical curve, however. Both conservatives and liberals continue to express dissatisfaction and frustration after eight hours of questioning on Tuesday and another day’s work on Wednesday. When the final, anticipated decision to move Roberts’ recommendation for approval as Chief Justice to the full Senate is made, many expect that the votes will fall neatly along partisan lines with a slim 10 – 8 majority, a tighter margin than Roberts received in 2003 when he became a member of the U.S. Court of Appeals for the District of Columbia. Even Republicans confess that they would prefer a less straight-party result.
Of chief concern to members of the adult industry and those who support and enjoy it, are Roberts’ views on the First Amendment and related issues of privacy. Unfortunately for observers and pundits, an enormous amount of attention has been aimed at drawing out Roberts’ opinions on abortion, while requests for his views on issues of Free Speech and privacy have been comparatively minor – and rarely combined.
At one point during Tuesday’s session, Judiciary Committee Chair Arlen Specter (R-PN) queried Roberts concerning a 1981 memorandum that he wrote while working for the Reagan administration. In the memo Roberts referred to the “so-called right to privacy.” When asked if he believed that the Constitution includes a right to privacy, the court candidate answered in the affirmative, citing the First and Fourth Amendments as protecting speech and providing protection against unreasonable search, as well as the Third Amendment, which assures homeowners that their residences cannot be used to quarter military personnel against their will. Even with these vague assurances, committee Democrats were not convinced, leading senator Joseph Biden, D. Delaware, to conclude that, “The answers are misleading.” Specter reminded Biden and others that, “The answers may be misleading, but they are his answers.”
Roberts has several times insisted that his Catholic faith would and does not influence his rulings on Constitutional matters, yet his continual depiction of his previous writings as being the result of having expressed “administrative positions” that may not have been his own has not proven reassuring. To the contrary, it has left many wondering precisely what views the proposed justice holds and how they might affect his interpretation of the law. Others further contend that Roberts has not been entirely honest about his past and present standing on important issues.
Although Roberts’ track record is limited, what has been made clear during the hearings is that he claims a strong respect for a legal principle called “stare decisis,” which is Latin for standing by a rulings that have been “settled as a precedent of the court.” Supporters of this approach contend that it provides attorneys and ordinary citizens with a sense of legal stability. While this may reassure some pro-choice supporters, it is no guarantee for those concerned about protecting sexually frank speech. First Amendment guardians aware of the exchange between Roberts and Senators Jon Kyl (R-AZ), Mike DeWine (R-OH), were witness to what may be ominous shadows for Free Speech.
After bemoaning the lessening of discipline within the public school system, Kyl criticized a 2003 Supreme Court decision stating that sexually explicit images of minors created via the use of computer software – as opposed to actual children – did not qualify as a violation of child pornography laws. Roberts deftly responded with statements concerning the importance of honoring the Constitution. It was this same Constitution that Roberts chose to reference as a possible justification for restricting “pornographic expression” during an exchange with DeWine, who expressed frustration at the repeated overturning of the Communication Decency Act. The Senator became passionate about the unavailability of traditional public venues for assemblage and discussion, observing that although the internet is available as an alternative, it is too cluttered with “very troubling material, and that is pornography.” Further, he proposed – without argument from Roberts – that when it comes to legal protections, “pornography is different” and “should be treated differently than political speech.”
Roberts countered by agreeing “that pornographic expression is not protected to the same extent, at least, as political and core speech. And the difficulty that the court has addressed in these different areas, of course, is always defining what is or is not pornography and what is entitled to protection under the First Amendment and what is not.”
Given his stated affection for stare decisis, his acknowledgment during the hearing that the First Amendment exists to protect unpopular speech, recent privacy and free speech decisions including Lawrence vs. Texas and United States vs. Extreme Associates – and his admission that in spite of his affection for stare decisis, the occasional “jolt to the legal system” with an overturned precedent can be necessary – there is no knowing how he might rule as a Justice, let alone Chief Justice of the U.S. Supreme Court, during a time of increased pressure to pursue obscenity convictions.
