the Roberts Test ii

Today, regardless of their likelihood of success, Senators opposing the confirmation of Samuel Alito to the Supreme Court will have their last, most-focused opportunity to make the case against him. For those Senators supporting a filibuster of Judge Alito, a filibuster that many in this country do not even know is being attempted, it will be a chance to explain their rationale for undertaking such a serious action.

Whether or not this filibuster effort is successful, what is said today will be significant. The message sent must have unity and principle.  It must also be tactical and clear

Some oppose Samuel Alito simply because he is "too extreme". Some oppose him for his views on Choice and his refusal to accept Roe v Wade. Some oppose him for a judicial philoshopy that, the record shows, is antithetical to the little guy.  Some oppose him for his views on executive power.  All of these reasons are sufficient for any Senator to vote no on Samuel Alito; they form a laundry list of complaints against him.

What I would like to add to the mix is a concept that helps unite these views into a strategic formulation that has broad appeal and lasting usefulness:

Samuel Alito does not pass the Roberts Test.

Chief Justice John Roberts is an exemplary conservative.  There is no doubting the bona fides of his conservative credentials: clerking for Associate Justice William Rehnquist from 1980-81, service in the Reagan Administration from 1982-1986, nominations to the federal judiciary from both President G.H.W. Bush and his son, President George W. Bush.

As the wiki article linked above notes:

Cass Sunstein, a law professor at the University of Chicago argues that in general, Roberts appears to be a judicial minimalist, emphasizing precedent, as opposed to an originalism-oriented or rights-focused jurist. "Judge Roberts's opinions thus far are careful, lawyerly and narrow. They avoid broad pronouncements. They do not try to reorient the law."

Despite these conservative credentials, John Roberts won confirmation in the United States Senate by a vote of 78-22, winning the support of all of the Republican Senators, 1 Independent, and even 22 Democratic Senators.

In part this was because of Chief Justice Roberts's brilliant legal mind and record. In no small part this was due to his performance before the Senate Judiciary Committee.

It is significant, however, to note an important statement John Roberts made before that committee that confirms Professor Sunstein's analysis.

Chief Justice Roberts said in his 2003 Senate testimony before his confirmation as a judge on the United States Court of Appeals for the District of Columbia Circuit :

"Roe v. Wade is the settled law of the land...There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey.

Many have focused on that statement simply as an indication of Chief Justice John Roberts's acceptance of the "essential holdings" of Roe v Wade. On its face, the above statement is a significant position regarding Roe v Wade. Since John Roberts is now Chief Justice, it is, in many ways, historic. In fact, however, it means much more than that.

What our current Chief Justice established in his testimony before the judiciary committee was a standard, not simply about his position vis a vis Roe, but a standard that established Chief Justice Roberts's lack of hostility to precedent. Justice Roberts indicated that he will not try to, in Professor Sunstein's words, "reorient the law."

This standard, both in regards to Roe, and in terms of what it says about Chief Justice Roberts's basic judicial temperment forms what we can call, the Roberts Test.

Chief Justice John Roberts, whether he intended to or not, established a standard by which we can measure the acceptabilty of any nominee.

John Roberts won the votes of Senators from both parties because his acceptance of Roe conveyed that he was not hostile to Supreme Court precedent and settled law. Now, like Justice Ruth Bader Ginsberg before him, Justice Robert's position did not say anything about how the he would rule in any given case. But it did convey Roberts's willingness to go beyond abstract and general respect for Supreme Court precedent; the thrust of his testimony conveyed Judge Roberts's willingness to accept the legacy of the Supreme Court's decisions. It was this lack of hostility that won Judge Roberts his position as Chief Justice of the Supreme Court and the votes of Senators of both parties.

When Judge Samuel Alito came before the very same Senate Judiciary Committee....after Chief Justice Roberts had already established the tenor and shadow of this "umbrella"...this "test" which might be applied to any nominee...Judge Alito deliberately chose NOT to avail himself of the cover of the acceptance of "precedent and settled law" in regards to Roe v Wade.

Here is how the Washington Post reported Alito's testimony before the committee:

Alito edged closer to suggesting that he might be willing to reconsider Roe if he is confirmed to the high court, refusing, under persistent questioning by Democrats, to say that he regards the 1973 decision as "settled law" that "can't be reexamined." In this way, his answers departed notably from those that Chief Justice John G. Roberts Jr. gave when asked similar questions during his confirmation hearings four months ago.

Yesterday, Alito said that Roe must be treated with respect because it has been reaffirmed by the high court several times in the past three decades.

But when Sen. Richard J. Durbin (D-Ill.) peppered Alito with questions about whether the ruling is "the settled law of the land," the nominee responded: "If 'settled' means that it can't be reexamined, then that's one thing. If 'settled' means that it is a precedent that is entitled to respect . . . then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis."

This discrepency is extremely significant.  In fact, it cannot be under-emphasized.

Simply put, John Roberts talks about respect for Roe through Casey, through an explicit acceptence of the stare decisis that decision provided for Roe. This vantage point confirms his earlier statement "accepting" Roe as settled. It tells us how John Roberts views Supreme Court precedent. It shows us he is not hostile to established law.

Samuel Alito rejects referring to Roe as settled, and leaves open reexamining Roe v Wade itself. He does not talk about Roe through Casey, as Roberts does, but instead refers to "respecting the precedent" of Roe generically, as if Casey did not exist. Samuel Alito's testimony is a notable departure from that of Roberts. Judge Alito, in sum, might be viewed as hostile to Casey and hostile to Roe.

Judge Alito did not come before the Senate Judiciary committee in a vacuum. He came as a nominee who would join a sitting, conservative, Chief Justice who had established a new standard with his testimony before the judiciary committee.

Samuel Alito, however, chose NOT to avail himself of what we can call "the umbrella of the Roberts Test."  He deliberately chose to stand outside that umbrella.

Judge Alito, despite being given every opportunity to accept the essential holdings of Roe, upheld in Casey, chose deliberately to put himself outside that standard.

That has had two consequences that help explain the basis of the Roberts Test.

First, the vast majority of Democratic Senators have been forced to oppose the nomination of Samuel Alito and vote against him.  This is the first way Samuel Alito fails the "Roberts Test."

A Supreme Court nominee should, as a matter of practice and principle, be able to win bi-partisan support. Judge Alito's deliberate hostility to Roe guaranteed that he would not.

Second, and most signficant, Judge Alito has opened the door for any nominee, at any future point, to rise to the Supreme Court by simply conveying a general "respect" for stare decisis on any matter or issue, regardless of their actual hostility to an individual decision, and that matter's broad acceptance as "settled law."

If Chief Justice John Roberts accepts Roe and Casey as "settled law"...what does it say that the Senate is now advancing a nominee to the Supreme Court to join our Chief Justice who is unwilling to accept Roe...who is unwilling, even, to accept John Roberts's standard?

That should give every Senator pause.

What I am calling the Roberts Test is not simply about Roe v Wade, though it includes that standard, nor is it simply about the value that presidential nominations to the Supreme Court should be able to, in some measure, win bipartisan support.

What the Roberts Test establishes is that hard fought rights that have been upheld by the Supreme Court and enjoyed by American citizens for decades should not be put in jeopardy by a nominee to the Supreme Court who is hostile to those rights and unwilling to avail themselves of a standard so basic that even our current Chief Justice was able to state clearly and directly that he "accepts" the specific decisions that form the basis of those rights.

Any nominee to the Supreme Court must be able to say that they accept decisions, reaffirmed by our Court time and again, that define the basic rights and liberties of American citizens.

The basic rights of American citizens should not be subject to a political ping pong match.

That, in a nutshell, defines the Roberts Test.

It is certain that if Samuel Alito is confirmed to the Supreme Court, the "political ping pong match" of test cases and legislation will begin.

It is that standard, and that very real consequence, more than anything else, that merits the serious steps taken in opposition to this nomination. Senators on both sides of the aisle should consider the consequences of Samuel Alito's confirmation to the Supreme Court not simply for its implications in this instance but for its grave implications for all future nominations to the Court.

Judge Samuel Alito fails the Roberts Test.

For the good of this nation and our Supreme Court, he should not be confirmed.