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Week Ending July 22, 2005

Roberts, John G. Jr.

Born 1955 in Buffalo, NY

Federal Judicial Service:
U. S. Court of Appeals for District of Columbia Circuit
Nominated by George W. Bush on January 7, 2003, to a seat vacated by James L. Buckley; Confirmed by the Senate on May 8, 2003, and received commission on June 2, 2003.

Education:
Harvard College, A.B., 1976

Harvard Law School, J.D., 1979

Professional Career:
Law clerk, Hon. Henry Friendly, U.S. Court of Appeals for the Second Circuit, 1979-1980
Law clerk, Associate Justice William Rehnquist, Supreme Court of the United States, 1980-1981
Special assistant to the attorney general, U.S. Department of Justice, 1981-1982
Associate counsel to the president, White House Counsel's Office, 1982-1986
Private practice, Washington, DC, 1986-1989, 1993-2003
Principal deputy solicitor general, U.S. Department of Justice, 1989-1993
Race or Ethnicity: White
Gender: Male

From the People for the American Way organization-

http://media.pfaw.org/roberts.pdf

John Roberts, DC Circuit In the short time since he was confirmed by the Senate in May 2003, Judge Roberts has issued troubling dissents from decisions by the full D.C. Circuit not to reconsider two important rulings. These included a decision upholding the constitutionality of the Endangered Species Act as applied in a California case and a ruling against Bush Administration efforts to keep secret the records concerning Vice President Cheney's energy task force.

· Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003): constitutionality of Endangered Species Act

This case involved a real estate development company's contention that the application of the Endangered Species Act to its construction project in California was an unconstitutional exercise of federal authority under the Commerce Clause. After the United States Fish and Wildlife Service determined that the company's project "was likely to jeopardize the continued existence of the arroyo southwestern toad," placed on the Endangered Species List by the Secretary of the Interior in 1994, the company filed suit "[r]ather than accept an alternative plan proposed by the Service." Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1064 (D.C. Cir. 2003). The district court dismissed the company's complaint, and a panel of the D.C. Circuit unanimously upheld the dismissal (323 F.3d 1062), following prior D.C. Circuit precedent upholding congressional authority under the Endangered Species Act. By a vote of 7-2, the D.C. Circuit denied a petition for rehearing en banc (by the entire court) of the panel's ruling.

The only dissenters were Judges Roberts and Sentelle. All of the other Republican-appointed judges on the court - Judges Ginsburg, Henderson, and Randolph - joined the court's Democratic appointees in voting to deny rehearing en banc. The panel's opinion upholding the authority of Congress under the Commerce Clause in this case not only followed D.C. Circuit precedent, but was also consistent with a recent ruling of the Fourth Circuit in Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), cert. denied, 531 U.S. 1145 (2001). The opinion in that case upholding the authority of Congress to protect endangered species on private lands was written by Judge J. Harvie Wilkinson, a conservative Republican-appointee.

Roberts's dissent in Rancho Viejo strongly suggested that he thought it would be unconstitutional to apply the Endangered Species Act in this case. By his vote to rehear the case and thus potentially reverse the district court, Roberts indicated that he may well be ready to join the ranks of such right-wing officials as Judge Michael Luttig (who dissented in Gibbs) and Alabama Attorney General William Pryor - nominated by President Bush to the Eleventh Circuit - in their efforts to severely limit the authority of Congress to protect environmental quality as well as the rights and interests of ordinary Americans.

· In re: Richard B. Cheney, Vice President of the United States, 2003 U.S. App. LEXIS 18831 (D.C. Cir. 2003), cert. granted, 2003 U.S. LEXIS 9205 (2003): secrecy of Vice President Cheney's energy task force

Judge Roberts was one of the dissenters in the court's 5-3 denial of a petition for rehearing en banc (with one judge not participating) filed by the Bush Administration in its continuing efforts to avoid releasing records pertaining to Vice President Cheney's energy task force. This ruling came in litigation brought by Judicial Watch and the Sierra Club charging that the Vice President's task force had violated federal law by not making its records public. The court's ruling marked "the fourth time a judicial panel has rebuffed efforts to keep the information from the public." Carol D. Leonnig, "Energy Task Force Appeal Refused," Washington Post (Sept. 12, 2003). At the Administration's urging, the Supreme Court has agreed to review the case; a decision is expected by the end of June 2004.

John Roberts: Sparse Record Raises Serious Concerns

Opinions and argued cases raise doubts about where Roberts stands on protection of Americans’ constitutional rights and freedoms; Sparse record requires close Senate scrutiny to determine suitability for Court

Federal appeals court Judge John Roberts, nominated by President Bush to the U.S. Supreme Court, has a sparse public record; and several of his judicial opinions and argued cases raise real concerns about his suitability for the Supreme Court, said People For the American Way President Ralph G. Neas.

“It is extremely disappointing that the President did not choose a consensus nominee in the mold of Sandra Day O’Connor,” said Neas. “John Roberts’ record raises serious concerns and questions about where he stands on crucial legal and constitutional issues – it will be critical for Senators and the American people to get answers to those questions. Replacing O’Connor with someone who is not committed to upholding Americans’ rights, liberties, and legal protections would be a constitutional catastrophe.”

Roberts was a corporate law firm lawyer for most of his career; where he does have a record, said Neas, Roberts has failed to show a commitment to fundamental civil and constitutional rights, both in his role as a Deputy Solicitor General and as a judge. Neas called on all senators, regardless of political party, to take the time necessary to carefully review Roberts’ complete record and insist that Roberts openly and fully discuss his judicial philosophy on important constitutional and legal issues.

Advocating Against Privacy Rights and First Amendment Protections
As Deputy Solicitor General during the first Bush administration, Roberts tried to convince the Supreme Court to overturn Roe v. Wade in a case that didn’t even directly concern that issue. The case, Rust v. Sullivan, dealt with a rule prohibiting federally funded family planning clinics from discussing abortion with patients, not the validity of Roe, which protects a women’s constitutional right to reproductive freedom. Nevertheless, Roberts’ brief proclaimed that “[w]e continue to believe that Roe was wrongly decided and should be overruled” and that the Court’s ruling that a woman has a fundamental right to make her own reproductive choices about abortion has “no support in the text, structure or history of the Constitution.”

Roberts urged the Supreme Court in Lee v. Weisman to rule that public schools can officially sponsor prayer at graduation ceremonies. The Court rejected Roberts’ arguments, upholding the principle of church-state separation that protects students’ and all Americans’ religious freedom.

Undermining Environmental Protections and Rejecting Protections for Veterans
During his short tenure as a judge on the Court of Appeals for the D.C. Curcuit, Roberts has issued troubling dissents against environmental protection and veterans’ rights. In one case, Roberts wrote a dissent suggesting that the Endangered Species Act, at least as applied in a case concerning a California development project, was unconstitutional. All the other judges on the court except one, including judges appointed by President Reagan and the first President Bush, disagreed with Roberts.

In another case, Roberts argued that federal courts cannot even hear claims by American soldiers who had been tortured in Iraq as POWs during the Gulf War. His opinion was rejected by the court’s majority.

The Senate’s Duty
“The Senate is the president’s constitutional partner in appointing people to lifetime positions on the federal courts, especially the Supreme Court” said Neas. “It is the senators’ duty not to act as rubber stamps for the President’s nominees, but to examine carefully all the evidence about the nominee’s record and make an independent judgment. Particularly given Roberts’ sparse public record, confirmation must depend in large part on his willingness to share and defend his legal philosophy and fully answer senators’ questions about his views on our Constitution and protections for our fundamental rights and freedoms.”

For a detailed preliminary report on Roberts’ record, please visit http://media.pfaw.org/roberts.pdf

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