Wednesday, July 20, 2005

John Roberts

Desperate to divert media attention away from consiglieri Rove, President Bush rushed out his Supreme Court nomination tonight: John Roberts.

The general consensus seems to be that although Roberts is (very) conservative, he's not a right-wing wack-job, so he's probably a shoe-in. And although the right wing blogosphere is delighted, even some lefties think it could have been much worse. On the other hand, it's still early. There could be an illegal alien in the closet. Maybe he drank a beer before the age of 21 or made an illegal right turn.

But, of course, the question on all Confined Space readers' minds today is: "How is John Roberts on workplace safety and labor issues?"

The answer is probably not great.

At the beginning of this month, I posted an article entitled Supreme Court Abolishes OSHA, EPA where I quoted political analyst David Sirota saying that in its Supreme Court coverage the press is missing "the real storyline of 'Big Money' vs. "Ordinary Americans."

I raised the specter of a Supreme Court majority that agrees with the so-called "constitution in exile" movement which argues that the most important rights are economic rights, particularly the right to property, and anything that take away those rights -- such as environmental or workplace safety laws -- are, or should be, unconstitutional. And I quoted University of of Chicago law professor Cass Sunstein, warning that "many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional."

So where are we the morning after the nomination?

First, Roberts was on the short list of the big business community:

Glenn Lammi, chief counsel of the conservative Washington Legal Foundation, identified at least three possible nominees that big business would cheer: John Roberts Jr., Edith Brown Clement and Janice Rogers Brown. All three are federal appeals court judges.

Corporate America would favor Roberts and Clement because both were once private practitioners who represented business interests -- experience the Rehnquist court now lacks. Given their past experience, the thinking goes, both judges might be friendly to corporate America.

There's a chance too that either Roberts or Clement could influence the court to decide more cases deemed critical to business. The court under Chief Justice Rehnquist has been criticized for not taking up enough cases each term generally, and business cases in particular.

The ACS Blog reports that

Judge Roberts' nomination to the D.C. Circuit was opposed by organizations concerned with his prior record. As a law student, Judge Roberts argued for an expansive reading of the Takings and Contracts Clauses, something which might suggest sympathy towards the Constitution-in-Exile movement, a movement of political conservatives who favor reinterpreting the Constitution to strike down economic regulations.
OK, he was just a law student. What about real life? Prior to being appointed to the D.C. Circuit, Roberts worked for the Reagan and Bush (I) administrations and in private practice.

According to the Alliance For Justice,

In private practice, Roberts has often represented corporations in suits against private individuals or the government. He represented Toyota Motor Manufacturing, Kentucky, Inc., in its successful petition to the Supreme Court arguing that a worker with carpal tunnel syndrome is not disabled such that she is entitled to accommodation at work under the Americans with Disabilities Act. Mr. Roberts took the position that Ella Williams, an automobile assembly line worker, was not covered by the ADA, even though she was fired because carpal tunnel syndrome – which she acquired as a result of activities she was required to perform as part of her job – prevented her from doing all of the tasks required by her job.
Then there's this from the Center for Investigative Reporting:

In April 2000, Washington DC lawyer John Roberts filed an amicus brief on behalf of the National Mining Association in the federal 4th Circuit Court to block a lawsuit filed by West Virginia citizens opposed to the coal industry's destructive "mountaintop removal" practice. Two years later, Roberts was nominated by President Bush and confirmed to the powerful DC Circuit Court of Appeals. In April 2004, as a judge on that court, Roberts ruled against environmentalists who were pushing for more restrictive government regulations over copper smelters--many of whose owners are members of the National Mining Association--that emit toxic lead and arsenic pollutants.
As a judge, according to People for the American Way, Roberts ruled against application of the Endangered Species Act in Rancho Viejo, LLC v. Norton, indicating that he may well be ready to join the ranks other right-wing officials in their efforts to severely limit the authority of Congress to protect environmental quality as well as the rights and interests of ordinary Americans.

The Alliance for Justice fears that his views as indicated by the Rancho Viejo case, "could threaten a wide swath of workplace, civil rights, public safety and environmental protections."

The Alliance hasn't come out against Roberts yet, but called on the Senate "
to fulfill its constitutional duty to fully vet Judge Roberts’ qualifications, background, and constitutional philosophy to see if he meets the high standards for a lifetime appointment to the Supreme Court. "

UUPDATE: And court watcher Linda Greenhouse in today's NY Times:

the nominee's network of associations suggests a firm identification on the conservative side of the legal spectrum: not only his involvement with the Federalist Society, but his service, before he became a judge, on the legal advisory council of the National Legal Center for the Public Interest, a group here that describes its goal as promoting "free enterprise, private ownership of property, balanced use of private and public resources, limited government, and a fair and efficient judiciary." It is a group that attracts support from many prominent conservatives.

And then Nathan Newman reminds us of AFL-CIO v. Chao (2005):

This decision upheld most of the Labor Department's punitive reporting requirements by labor unions, but could not demand such reporting from non-union organizations where unions merely elect some representatives to their boards. Roberts in dissent by himself wanted to give the labor department full power over any organization where a union had any representation in its leadership.
Nathan Newman has the best commentary on this issue. First, addressing the argument that Roberts has a very short paper trail because he's only been on the Appeals court for two years, Nathan points out that he has a much longer private sector trail and experience in the Reagan and Bush I administrations where he's distinguished himself as a partisan hack.

Regarding the argument that Roberts' true personal views can't be judged by his private sector history because he was "only representing his client," Nathan responds:

Of course, deciding to spend years working for this particular client, the Reagan administration, says a lot about Roberts' personal views, but Juan is right in one sense: Roberts has spent his career as a mind-for-hire on behalf of the rightwing Republican agenda. Whatever he said was done to advance his career with no intellectual integrity, since according to his defenders, he didn't believe a word he said.

So if his career is one of years of political hack partisanship, sprinkled with a few years acting as a well-paid hack on behalf of corporate interests, why should we believe Roberts has the temperment to be an independent Justice?


If the words Roberts wrote for all his clients don't reflect work upon which he should be evaluated, then the two years on the bench is too little experience to be confirmed.

And if all John Roberts can say is, sorry, I've been a partisan hack for twenty-five years, so I don't have any vision that I can talk about -- well, that's not good enough either and he should be rejected.

So where does all of this leave us? At least a little worse off than before. But the bottom line is, who knows? Although Nathan and others think he's a political hack, maybe he'll mature now that he doesn't have any "clients." Maybe he's another David Souter.

Maybe I should go to bed.

Other Supreme Court Links

Think Progress
People For The American Way
Independent Judiciary (The Alliance For Justice)