Once again, just too conservative
AFTER SPENDING the last month reading countless briefs and memos written by John G. Roberts Jr., it is clear that he would very likely change the law dramatically in key areas such as privacy rights, separation of church and state and racial justice. Democrats need to oppose Roberts for the same reasons they fought against Clement F. Haynsworth Jr. in 1969, Harold Carswell in 1970, Robert Bork in 1987 and Clarence Thomas in 1991.
The parallels to the fight over Bork are striking.
Bork was nominated to replace Lewis F. Powell Jr., who had been the high court's swing vote on such key issues as abortion, religion and affirmative action. Bork's record demonstrated that he was a sure vote to change the law in these areas and others. Contrary to revisionist accounts, Bork was not defeated because of a smear campaign. The Senate rejected Bork by the largest margin in U.S. history because he believed there was no constitutional protection for privacy, and he had a very narrow view of the scope of equal protection and the 1st Amendment.
After Bork's nomination was rejected, President Reagan appointed Anthony M. Kennedy to the court. Although Kennedy has been a solid conservative, he also was the fifth vote to reaffirm Roe vs. Wade and to bar prayers in public schools. He wrote opinions striking down a Texas statute prohibiting private consensual homosexual activity and holding it unconstitutional to execute a person for a crime committed as a juvenile. There is no doubt that denying Bork a seat on the Supreme Court has made a decisive difference in countless cases.
Since Powell's resignation, Sandra Day O'Connor has been the fifth vote in such crucial areas as upholding the right to abortion, limiting campaign contributions, protecting the separation of church and state and permitting universities to engage in affirmative action. Democrats need to oppose any nominee who would bring about significant changes in these areas.
Everything known about Roberts suggests he would join with the most conservative justices to change the law in a conservative direction. As deputy U.S. solicitor general, Roberts coauthored briefs expressly urging the court to overrule Roe vs. Wade. As an attorney in the Justice Department, Roberts drafted an article arguing that there is no constitutional protection for privacy.
