Janine Jackson revisited CounterSpin‘s July 2005 interview with Adele Stan and Elliot Mincberg about John Roberts’ nomination to the Supreme Court for the July 8, 2022, episode of CounterSpin. This is a lightly edited transcript.
Janine Jackson: “The Lonely Chief: How John Roberts Lost Control of the Court.” That was the plaintive headline of Politico’s June 25 report explaining that Roberts, along with his “middle of the road” approach on abortion, would likely be a casualty of the court’s Dobbs v. Jackson Women’s Health ruling.
In July of 2005, on the occasion of Roberts’ nomination to the court, CounterSpin host Steve Rendall and I spoke with journalist Adele Stan and with People for the American Way’s Elliot Mincberg about what was known then about Roberts’ record and what he might mean for the court. We’re going to start with my introduction.
JJ: Many in the news media seemed to breathe a sigh of relief at the news that George Bush was nominating conservative Washington insider John Roberts to the Supreme Court. And not just the folks you’d expect, like Brit Hume at Fox News, who shared a chuckle with congressional correspondent Brian Wilson and White House reporter Carl Cameron when he noted that Bush had named a white male “just like all of us.”
Well, even while admitting that Roberts’ record is sketchy on some issues, many mainstream reporters seem to emphasize the reassurance that he is not a right wing trench dweller like some others who were thought to be on Bush’s short list of prospective nominees.
New York Times Supreme Court reporter Linda Greenhouse assured readers that Roberts was “someone deeply anchored in the trajectory of modern constitutional law.” That’s as opposed to “someone who felt himself on the sidelines throwing brickbats, or who felt called to a mission to change the status quo.”
Our guests think there’s more to the story, and point to some troubling signs in Roberts’ record that warrant serious scrutiny.
We’re joined now by telephone by Elliot Mincberg, the legal director of People for the American Way, and by journalist Adele Stan, author of the article “Meet John Roberts” for The American Prospect Online (7/20/05). Welcome to CounterSpin, both of you.
Elliot Mincberg: Pleasure to be here.
Adele Stan: Good to be here.
JJ: Well, Elliot Mincberg, let me start with you. In that July 20 New York Times piece, Linda Greenhouse emphasized “no flame-throwing articles or speeches, no judicial opinions that threaten established precedent, no visible hard edges.”
There have been some exceptions, and of course the story is still growing, but I wonder what your general reaction is to this first wave of response, which seems to be kind of, “Phew. What a relief. He’s not so bad.”
EM: I think it does underemphasize the very serious concerns that have been raised. Roberts is known well to reporters who cover the Supreme Court as an excellent advocate, someone who makes his legal points well, but if you look carefully at his record, there are a number of very troubling concerns.
Probably the two that top the list are his participation as the top ranking political deputy in the Solicitor General’s office in a case during the Bush One administration that didn’t really even concern Roe v. Wade, where he wrote in the brief that Roe v. Wade is wrong and should be overturned. I think that’s a serious, serious subject of concern.
Second, as a judge on the DC Circuit Court of Appeals, there was a case before the court that had to do with the constitutionality of the Endangered Species Act as applied to a development in California. The three judges who heard the case originally agreed that it should apply. All nine judges on the circuit were asked to reconsider. Seven of the nine of them agreed not to reconsider it, including some very conservative Republican appointees.
Roberts was one of the only two who said, “Let’s take another look at that,” and strongly suggested he had serious doubts about the ability of Congress to pass that kind of law. And that kind of legal philosophy could seriously endanger not just the environment, but the ability of Congress to pass all sorts of laws protecting the environment, health, safety and civil rights.
So those two aspects of his record alone raised very serious concern.
Steve Rendall: Adele Stan, Elliot Mincberg just mentioned John Roberts’ record on Roe v. Wade. In your American Prospect Online piece “Meet John Roberts” you wrote about that, and you further elaborated with some information that might give us an even greater insight into John Roberts’ views on privacy and reproductive rights.
AS: Well, I mean, of course I mentioned that in the piece and not with the sage wisdom of Elliot because I am not a lawyer or a legal expert, but of course his writings that pulled in Roe v. Wade in his assertion that it should be overturned in a case that had nothing to do directly with Roe v. Wade did, you know, set up a red flag for me.
But at least as troubling to me is the amicus brief he filed on behalf of the government in support of the group Operation Rescue, which those of us in the trench wars of the 80’s and 90’s to, you know, preserve a woman’s right to choose know as a very kind of frightening foe.
And this was not a case in which the government truly had a dog in the fight, which is not to say that the government doesn’t often file amicus briefs, but given the controversial nature of this group, it just seems to me that it had to have been an act of someone’s conscience, you know, to prompt them to file this.
JJ: Well, that involvement in the Operation Rescue case certainly has not been appearing in the context of every article in which Roberts’ view on Roe v. Wade has been mentioned, as that would sort of complicate that story a little bit, don’t you think?
AS: I would certainly think it should, but what you do hear from Roberts’ proponents is that, well, he’s a good lawyer and he knows how to represent his clients. And he has represented clients of different, you know, views. And so he was just doing his job on behalf of the Bush One administration when he, you know, filed these briefs on behalf of his client, you know, the Bush administration, the US government.
I would assert that, you know, we’re hearing a lot of things about his character being quite sterling, and I don’t have any reason to doubt that, you know, but people just talk about what a great guy he is and he’s a man of integrity, and I find it very difficult that someone of that level of integrity would embrace something that fundamental to one’s personal philosophy if he disagreed with it.
SR: Well, something that keeps coming up in this coverage is the idea of “borking,” the possibility that Roberts or any other nominee might be borked. Elliot Mincberg, what do you make of the way the history of Bork’s rejection is being presented here?
EM: Well, I think it’s clearly a revisionist history because what happened with Robert Bork is just what should have happened. His views, his philosophy, his record was examined extremely carefully, and then his hearings, in a lot of ways, became almost a nationwide seminar on the constitution: What it does mean, what it should mean and what, unfortunately, Robert Bork wanted it to mean, which would’ve taken away constitutional rights of every American.
In that sense it’s become an undeserved pejorative, but we think that that kind of work is critical on every nominee, even more so on someone like Roberts who has such a very short record on the Court of Appeals.
AS: Which is said to be pretty partial, that short record, to the executive branch, and we’re in a situation now where so much power is being consolidated into the executive branch, and power is being drawn or [there are] attempts to draw powers away from the judicial branch. And the House of Representatives has passed legislation that’s clearly unconstitutional that would prohibit the federal courts from striking the words “Under God” out of the Pledge of Allegiance.
They’re basically prescribing what courts can and cannot act on. When you combine a mind like Roberts with that trend that is already afoot, that’s what I find rather frightening.
JJ: Well, we’re talking about media’s kind of short memory or distorted memory and how that’s affecting the coverage of this Roberts story. Some other media phenomena, media wisdom has been pretty revealing on this.
There’s an ABC online site called The Note. It’s a kind of a place where media elites talk to themselves. And we found this comment from there pretty revealing:
“The factor we think most likely,” they say on The Note, “to ensure John Roberts’ confirmation: that the Washington establishment, and the media establishment, know him and like him. Do not underestimate how hard it will be for Democrats to tar a potential nominee who has given working Washington journalists his cell phone number, and who is generally seen as a mensch.”
Not quite sure what you can do with that, but let’s get your response, Elliot Mincberg, to this notion of…
EM: I have seen the same thing and I find it very disturbing to tell you the truth, because whether you’re on the Supreme Court shouldn’t depend on how many people you give your phone number to, but what your philosophy as a judge will be and what your effect will be on the rights of the American people.
And I’m frankly very hopeful as time goes on and as we do the search and examination we need to do that people will rise above that and look at his record and whether he’s willing to answer critical questions before the Senate Judiciary Committee.
JJ: Your reaction then, Adele Stan, to this media wisdom on Roberts.
AS: Well, I mean, you know, I think that it is conventional wisdom and I think that it is—I mean, what they’re talking about is powerful in the Washington establishment. It is a clubby place, but you know, power is often just the perception of power. And if Democrats accede to that, “Oh my gosh, we can’t go against this guy because everybody likes him, especially the press, and then the press will jump all over us.”
Well, I mean then that just makes it happen. But if they put up some resistance, that becomes an interesting story. And I think it’s a story that can be, you know, that can be won and that can be fought well. I mean, a new poll just released today, I believe an AP poll, said most Americans want to know what this guy’s opinions on abortion are and they think that that should be discussed.
So, I think it’s one of these things where if you can just break out of the box, it could be a whole different ball game.
SR: Well, besides the arrogance and the sort of elitism of The Note’s message here, I’d like to zero in on one part of the passage where The Note seems to suggest that any sort of criticism by the Democrats would be a “tarring” of the nominee.
AS: Well, yeah, that is really troubling and see, and this is something—well, because that is what the right will do, is accuse the Dems of doing—and it’s especially insulating, and I’ve gotten already a lot of hate mail on asserting this, and I assert this as a Roman Catholic, it is insulating that he is a Roman Catholic, because the charge of anti-Catholicism is one that is often trotted out when you challenge someone on the right who is a Catholic and you challenge them on legitimate ideological grounds, it somehow becomes a challenge of their religion.
And there are people on the right who will do that. And I really think it’s important that the Catholic senators take the lead on this for just that reason.
JJ: So you, you seem to be saying that, although the Washington Post is saying Democrats should resign themselves to the fact that they can’t stop it, you think there’s still room for intervention here and something could change.
AS: I think that’s true. I think that, you know, every time you accept the focus groups and just the conventional wisdom, you just resign yourself to the predictable and the predictable becomes more predictable.
Things are very uncertain and unstable right now. And that can be played to an advantage. And I think that the American people are really beginning to get sick of all of this. And they just would like some reasonable choices, and I think that it would behoove Democrats, you know, to err on the side of reason and not defeatism.
JJ: We’ve been speaking with Adele Stan. You can read her article “Meet John Roberts” at The American Prospect’s online site, prospect.org. She also authors the blog addiestan.com: A breakaway republic of the mind.
We also spoke with Elliot Mincberg, legal director of People for the American Way. You can find them on the web at pfaw.org.
JJ: That was Adele Stan and Elliot Mincberg speaking with me and Steve Rendall back in July of 2005, 17 years ago, yet it all feels so fresh.
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This content originally appeared on FAIR and was authored by Janine Jackson.