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U.S. Supreme Court

John G. Roberts Jr: Code Words to Confirmation

In the debate about the next Supreme Court justice, both sides are speaking in code. But there's no consensus about what the words actually mean.

By BILL ADAIR and WES ALLISON
Published July 24, 2005

	A guide to Supreme rhetoric Roberts' writings showcase political savvy and sly wit

WASHINGTON - As President Bush urged the Senate to confirm John G. Roberts Jr. for the Supreme Court last week, he said his nominee would "strictly apply the Constitution" and will not "legislate from the bench."

Conservative leaders picked up those phrases and added a few more: He is a "strict constructionist" and "originalist" who won't be an "activist judge."

As debate about Roberts intensifies, his supporters won't say much about his positions on hot-button issues, including abortion, gay rights or affirmative action. Instead, they will speak in code, with carefully chosen words that telegraph messages to conservative activists but won't offend the political middle.

The words are carefully chosen - and sometimes tested in focus groups - to make sure they strike a chord with the right people. But they do little to explain where a nominee stands.

"The jargon that everyone is using on both sides of this debate is silly," said David Bookbinder, a senior attorney for the Sierra Club. "These are meaningless terms. They don't really contribute anything to the honest debate that should be going on."

John Roberts, 50, has spent much of his legal career in high-profile political jobs and has argued an impressive 39 cases before the Supreme Court.

But publicly, he has said little about the most contentious issues likely to face the court. Having served less than two years as an appellate judge, his judicial record is thin.

Yet when the president announced his nomination Tuesday night, conservative leaders were quick to embrace him as one of their own, as a "constitutionalist" and someone who believes in "judicial restraint."

Roberts himself used a few of the code words in his 2003 confirmation hearing, decrying "judicial activism" as "when the Court moves beyond the role of deciding a concrete case or controversy and begins to either legislate or execute the laws."

Supporters like that kind of talk. Conservatives complain the Supreme Court often oversteps its boundaries, thwarting the will of the people by overturning popular legislation.

"That's one of the things conservatives are most eager for a new justice to respect," said Richard Lessner, an associate at Capital City Partners, a conservative consulting firm in Washington. "These are co-equal branches. We do not live in a system of judicial superiority."

As deputy solicitor general in the first Bush administration, Roberts argued that the Constitution provided no basis for Roe vs. Wade. During his 2003 confirmation hearing, he said his arguments don't necessarily reflect his personal views, and he told wary Democratic senators that he believes Roe is the "settled law of the land."

Conservative leaders say they still believe he opposes abortion, noting his strong Roman Catholic faith and his wife's activism in an antiabortion group, but they are wary of making his confirmation a fight over abortion.

Americans generally favor legal abortion, polls show. A nominee who advocated overturning Roe would face major opposition in the Senate.

So Roberts' promoters won't say whether they think he would vote to overturn Roe vs. Wade, or uphold laws limiting late-term abortions or a minor's right to end her pregnancy.

Instead, they call him a "strict constructionist," which suggests he would question the legal reasoning behind the Roe decision, as have many scholars.

They won't say whether they think Roberts' would vote to overturn state laws on gay marriage or sodomy.

Instead, they promise he will not "legislate from the bench."

"Not legislating from the bench to our people means that he will not try to take on the job of the Congress," said William J. Murray, president of the Religious Freedom Coalition, a national evangelical advocacy group.

The Family Research Council has sent daily e-mails to members that promise Roberts will not be an activist judge and will "respect the limits of his own power and the distinction between interpreting and making the law."

Those terms are "shorthand for good and bad," said Tony Perkins, the group's president. "Good in that he understands the role of the court is not to create law. That's good. Activist, that's bad."

Democrats and liberal activists also speak in code.

Most have not taken a position on Roberts, but their early reactions - and their comments before he was picked - used plenty of code words.

Wade Henderson, executive director of the Leadership Conference on Civil Rights, said Roberts is "a stealth candidate." Sen. Edward Kennedy, D-Mass. called him "a blank slate" and said the Senate's job is to fill in the blanks.

Before the nomination, Sen. Barbara Boxer said she hoped Bush would appoint someone "in the spirit of Sandra Day O'Connor - non-ideological."

O'Connor, a Reagan appointee, pleased many Democrats by voting in favor of abortion rights and affirmative action. After Roberts was nominated, Sen. John Kerry declared that he was "no Sandra Day O'Connor."

For weeks, liberals said Bush wanted "another Scalia or another Thomas," referring to conservatives Justices Antonin Scalia and Clarence Thomas. Democratic groups use their names to conjure images of extreme conservatives who oppose abortion rights and gay marriage.

So what do the terms really mean?

Take "activist judge," a phrase that Bush has used at least five times this year.

"By any objective standard, it's a meaningless term," said Geoffrey Nunberg, a linguist at Stanford University.

A recent study by Yale law professor Paul Gewirtz and one of his students found the conservatives on the Supreme Court have been the true activists because they have struck down more laws than the liberals.

Democrats are using terms such as "blank slate" to call attention to Roberts' scant record. Calling him a "stealth candidate" goes one step further, implying something devious about his lack of a record.

Chuck Todd, editor of the political Web site Hotline, said Democrats were using the "stealth" label to stir up doubts among conservatives, using the same word the conservatives used for Justice David Souter, an appointee of President George Bush in 1990, much to their dismay, usually votes with liberals.

Todd said the Democrats "would like to draw up the memory of Souter. They are trying to goad the right."

He said Sen. Sam Brownback, R-Kan., "has taken the bait," because he raised doubts about whether Roberts was truly antiabortion.

Eddie Lazarus, an attorney and author of Closed Chambers, an inside look at the court, said code words allow judicial candidates to avoid a frank discussion of their views, especially on abortion.

"It's sad that we're in a situation where someone can't be honest and say, "I don't think Roe vs. Wade is founded on good constitutional thinking.' "

Instead, Lazarus said, "we have this phony debate."

[Last modified July 24, 2005, 00:32:04]