WASHINGTON (ABP) — President Bush's pick of a strong conservative for an open slot on the Supreme Court stirred strong reactions July 20 on both sides of America's debate over the proper relationship between religion and government.
But, according to one church-state law expert, they may be premature in deciding how he will rule on church-state issues.
Ending an intense three-week period of speculation that had preoccupied Washington, Bush announced late July 19 that he had tapped John Roberts to replace retiring Justice Sandra Day O'Connor on the nation's highest court. By midday July 20, some of the most vehement combatants in the church-state war had traded opening salvos over the federal appeals judge's fitness to rule on weighty matters involving the First Amendment's religion clauses.
“We're just very pleased by President Bush's nomination to the court,” said James Dobson, head of the Colorado-based Focus on the Family, in a noontime conference call with approximately 300 journalists around the nation. “Judge Roberts has a brilliant legal mind and his qualifications are impeccable.”
Alluding to his and other conservatives' complaints about the judiciary's role in the nation's most divisive cultural debates, Dobson continued: “Most importantly, we believe that Judge Roberts will interpret the Constitution and not try to legislate from the bench, which has been the pattern in recent years.”
At about the same time, Americans United for Separation of Church and State — a frequent Dobson critic — issued a statement lambasting Roberts' writings while he was a government attorney as being out of step with the First Amendment.
“Roberts will work to dismantle the wall of separation between church and state and open the door to majority rule on religious matters,” the statement read. “In a game with such high stakes, this unwise crusade should disqualify him.”
The AU statement noted that Roberts, while serving as a deputy solicitor general in the administration of President George H.W. Bush in 1991, signed off on a friend-of-the-court brief “urging the Supreme Court to scrap decades of settled church-state law and uphold school-sponsored prayer at public-school graduation ceremonies and other forms of government-endorsed religion.”
Roberts, who since 2003 has been a judge on the United States Court of Appeals for the District of Columbia Circuit, said during his Senate confirmation hearing for that position that one shouldn't judge from his writings as a lawyer how he might rule as a jurist. “I do not believe that it is proper to infer a lawyer's personal views from the position that lawyer may advocate on behalf of a client in litigation,” he said.
Nonetheless, Dobson and his ideological allies, who do not interpret as strong a separation of church and state in the text of the Constitution as do some, seemed satisfied with the judge's qualifications.
“[President Bush] has nominated a judge who knows the difference between the court and Congress, between litigating and legislating,” said Tony Perkins, president of the Washington-based Family Research Council, in the same teleconference as Dobson.
Roberts would replace Sandra Day O'Connor, who often — though not always — sided with strong church-state separationists in many of her rulings. Her vote frequently was the deciding one in controversial 5-4 decisions. Replacing her with someone who holds a different view of the First Amendment's religious-liberty provisions could have significant effects on church-state law for decades to come.
Despite Roberts' conservative credentials, he reportedly enjoys broad respect and goodwill across ideological lines in Washington's political and legal communities. Many political commentators say that will ease his approval in the Senate, despite the rightward shift he's likely to produce on the court.
But AU Executive Director Barry Lynn, according to the statement, said that would be an unwise move.
“Roberts' judicial demeanor and the technical quality of his writings are not at issue, nor is his pleasant personality,” Lynn said. “An understanding and concern for religious minorities and fundamental civil and human rights is what is missing from his record of government service. Just because a candidate is well-liked does not make him qualified to serve on a tribunal that is often the last great protector of the rights of the people.”
Chip Lupu, a church-state expert and professor at George Washington University Law School, said his research assistants had not yet found any cases on which Roberts had ruled as a judge that involved religious-liberty issues. Therefore, he said, it's nearly impossible to tell if Roberts would rule as a judge in accordance with the views reflected in his previous work as a government attorney.
“It wouldn't be any surprise to you or me if he agreed with every line he wrote — but you don't know if that's what he would decide as a justice,” he said.
And, despite Dobson's and Perkins' assurances that Roberts would be in line with the court's most conservative justices, Lupu noted that they sometimes disagree among themselves on church-state issues.
“I really have trouble seeing him being all the way over there with [Justice] Clarence Thomas — but is he going to be more like [Justice Antonin] Scalia or more like [Chief Justice William] Rehnquist?” Lupu asked. “It's hard to tell.”