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Why 'Chief Justice Roberts' is a Mistake for Bush and Conservatives

Eugene Delgaudio

As the Roberts confirmation hearings loom, the vast majority of the conservative movement has lined up squarely behind the nominee. Once again they seem to blindly trust a Republican president to appoint an originalist to the Court. However, Public Advocate of the United States, the national pro-family group I lead, has taken the difficult (but necessary) step of opposing his nomination to the Court and especially to the position of Chief Justice.

The problem with Roberts is not that his work on behalf of the homosexual lobby in the Romer case proves that he is going to be another Souter - it's that it doesn't prove he's not going to be.

Consider the Clinton appointees. Was there any doubt as to what kind of justice liberal ACLU lawyer Ruth Bader Ginsburg would be? When Clinton later appointed former Ted Kennedy staffer, Stephen Breyer, did anyone honestly think that he might be a Scalia in Souter clothing? When Democrat presidents make nominations we know what we are getting: liberal, activist judges.

However, when a Republican president is making the calls, buyers beware! Of the nine justices currently serving on the Court, seven were Republican appointees. Of these, three have been reliable originalists who faithfully interpret the meaning of the Constitution in a manner consistent with the text. The other four are activists who creatively manipulate the Constitution to fit their political agendas.

Conservatives won't fight for good nominees and won't stand up against poor or unproven nominees. When the left viciously attacked conservatives Robert Bork and Douglas Ginsburg, conservatives failed the challenge and the Ted Kennedys of the world bullied us into Anthony Kennedy, who has since written opinions citing foreign law in order to overturn democratically enacted American laws.

When the elder Bush appointed a "stealth candidate" known for his calm and inoffensive demeanor, liberals were left without a target. Oh, the genius of the Bush Administration. Sure enough David Souter sailed through the confirmation process and took his life-long seat on the Court.

In the immortal words of Homer Simpson, "DOH!"

Sadly, the examples don't stop there. The current dean of the activists, John Paul Stevens was a Ford appointee. And it was Ronald Reagan who appointed Sandra Day O'Connor, whose swing vote has provided us with dazzling jurisprudence like "well you can show the Ten Commandments outside, but put it under air conditioning and you have yourself a First Amendment violation."

Nixon batted .333 in Supreme Court appointments, Ford .000, Reagan .333 (.500 if you include the promotion to Rehnquist), George H.W. Bush .500, and Bill Clinton a solid 1.000… for the activist team of course.

Our failure to demand originalists has cost us dearly. It is because of Republican appointees that Roe v. Wade is still "settled law" (Casey), that states can no longer pass laws to protect family values (Romer and Lawrence), that foreign laws have legal standing to override American laws (Lawrence and Roper), and that people can view online virtual child pornography and do so in public libraries (Ashcroft v. Free Speech Coalition and U.S. v. American Library Association).

Now George W. Bush gets his turn at the plate and has chosen Judge John Roberts. While we were initially optimistic about the Roberts nomination, it soon became clear that his credentials as a conservative were not as impeccable as we were first lead to believe.

In 1996, as a partner in the D.C. law firm, Hogan and Hartson, Roberts was complicit in the successful bid to overturn the democratically adopted law in Colorado that protected families from courts unilaterally enacting the agenda of the radical homosexual lobby from the bench. What is worse is that this supposed originalist volunteered to do the work for free!

When the L.A. Times made this known, neither Roberts nor the White House had an acceptable explanation. In order to keep conservatives on board and in line we were given excuses like "he only helped them for a few hours," or "he was a partner and was expected to help with all the firm's appellate litigation." Yet the Times confirmed that he was never forced to take on the pro bono work and that he volunteered to do it of his own volition, which Roberts never refuted.

Neither this nor the other revelations that challenge his conservative credentials prove that Roberts will be an activist. However, it is more essential then ever that the new Chief Justice be a proven originalist who will stand up to the increasingly activist majority.

Why go with another "stealth candidate" with little track record on important issues as a judge who may have an easy confirmation fight, when there are the Edith Joneses, Michael Luttigs, and Samuel Alitos of the world who have already proven themselves on the bench and are worth fighting for?

While most conservative leaders continue to be "team players" after being asked by their friends in the White House to trust the administration, the new Chief Justice could serve as the figurehead for the Court for the next three decades. Public Advocate has decided that this is just too important. Enough is enough.

If the National Organization for Women would have discovered that Breyer had done pro bono work for pro-lifers in Casey, do we really think that they would have shut up and rolled over?

It is past time that conservatives took a couple pages from our opponent's playbook and choose to fight. We cannot simply rely on trust alone for a lifetime appointment as Chief Justice of the Supreme Court. The burden is on Roberts and the White House to prove that he is an originalist, not on groups like Public Advocate to prove he's not.

Now that the nomination has been made, the burden rests with Senators and the American public. It is essential that conservatives demand that their Senators ask Roberts the tough questions plaguing this nomination before deciding to throw their support behind the nominee.

Speak now or forever hold your peace.


Eugene Delgaudio is the President of Public Advocate of the United States, a nationwide pro-family group based in Northern Virginia that has been active in the conservative movement for over twenty-five years. He lives in Sterling, Virginia with his wife and children.