Behind the Smile: Bush Supreme Court Nominee John Roberts Has an Alarming Record on Church and State and Should Not Be Confirmed, Says Americans United

By Boston, Rob | Church & State, September 2005 | Go to article overview

Behind the Smile: Bush Supreme Court Nominee John Roberts Has an Alarming Record on Church and State and Should Not Be Confirmed, Says Americans United


Boston, Rob, Church & State


Tony Perkins could barely contain is glee when he learned that President George W. Bush had nominated John G. Roberts Jr. for a seat on the U.S. Supreme Court.

"The president promised us a judge along the lines of [Antonin] Scalia and [Clarence] Thomas, and he kept his promise," the Family Research Council president told USA Today. "There will be a philosophical shift in the court back to where it operates within its proper boundaries and respects the proper role of legislatures."

Bush's July 19 announcement that he had tapped Roberts, who has served on the U.S. Court of Appeals for the District of Columbia for less than two years, ended weeks of inside-the-Beltway speculation over Bush's first high court nominee. Now that the speculation is over, all eyes have turned to Roberts' record.

Roberts is under scrutiny for good reason: Justice Sandra Day O'Connor's surprise retirement from the Supreme Court in early July gives Bush an opportunity to dramatically reshape the court and push it in a direction more likely to please the Religious Right.

Church-state and "culture war" controversies continue to divide the nation. Often these disputes end up at the Supreme Court. O'Connor was known for her moderate views, and her departure raises the stakes considerably. Issues like government aid to religion, school prayer, legal abortion and gay rights hang in the balance.

Religious Right groups know how serious this is and are determined to make certain that O'Connor's replacement is more like Scalia than David H. Souter, the justice appointed by President George H.W. Bush in 1990 who has infuriated the right wing with his strong intellectual defenses of church-state separation.

The younger Bush is determined not to make the same misstep and is working overtime to appease religious conservatives. Shortly after O'Connor announced her retirement, media speculation focused on Attorney General Alberto R. Gonzales. Religious Right groups pounced immediately, asserting that Gonzales is insufficiently opposed to abortion.

Bush, who regards Gonzales as a friend, was angered by the attacks and told the groups to back off. They did, but Gonzales' name was quickly dropped from consideration.

Washington reporters then began focusing on a handful of federal appeals court judges. The morning of July 19, rumors began flying that Bush was going to offer the job to Edith Brown Clement, a judge on the 5th U.S. Circuit Court of Appeals.

But Clement's slim record on social issues made her essentially a huge question mark, and some right-wing groups complained that she too was soft on legal abortion. Late in the day, rumors surfaced that Clement was not the nominee, and around 7 p.m., an hour before Bush planned to announce his pick during a televised address, news outlets reported that Roberts had been chosen.

Although the media had considered Roberts a dark horse, he had apparently been on Bush's short list for a long time. Two days after Roberts was nominated, New York Times reporter David Kirkpatrick wrote a piece noting that for at least a year before the Roberts nomination, "the White House was working behind the scenes to shore up support for him among its social conservative allies, quietly reassuring them he was a good bet for their side in cases about abortion, same-sex marriage and public support for religion."

Roberts had worked as an attorney for President Ronald W. Reagan and in the Solicitor General's Office during the presidency of the first Bush, but his short tenure on the federal appeals court has produced a very short paper trail. Some conservatives, it seemed, were worried that he might turn out not to be a true believer.

To assuage those fears, the White House tapped Jay Sekulow, chief attorney for TV preacher Pat Robertson's American Center for Law and Justice, to make the rounds among the Religious Right and testify for Roberts. …

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