Now What's All This Crud About No Movie Tonight?

Well, by now we all know that Dubya has nominated Judge John Roberts to replace Sandra Day O’Connor on the Supreme Court.

The good news is he's not the worst possible nomination Dubya coulda' tapped... and we all know we expected the worst from our "Great divider in chief." The bad news is, Judge Roberts is a rock-solid conservative. While his legal record -what there is of it... savvy bastard has managed to lay low while rising high- will be reviewed intently over the course of the next few months, it's his role in the following cases that most disturbs me:

In 1980, the Supreme Court overturned portions of the Voting Rights Act in the case of City of Mobile v. Bolden. The Court ruled that portions of the act could only be violated by intentional discrimination and not as a result of laws that had the unintended consequence of being discriminatory. Congress debated creating a law to offset this ruling. Mr. Roberts, while in the Reagan administration, attempted to squash this effort.

As deputy solicitor general in 1990, Mr. Roberts wrote a brief on behalf of the government in the case of Rust v. Sullivan, which pertained to the prohibition of federal funding for family planning clinics if they discussed abortion with their patients. Mr. Roberts wrote, “…Roe was wrongly decided and should be overruled…[T]he Court’s conclusion in Roe that there is a fundamental right to an abortion…find[s] no support in the text, structure, or history of the Constitution.”

Later that year, Mr. Roberts authored a brief in the case of United States v. Eichman. He argued that making flag burning a criminal offense was constitutional, noting, “[t]he First Amendment does not prohibit Congress…from removing the American flag as a prop available to those who seek to express their own views by destroying it.” However, the Supreme Court disagreed, ruling that “…[p]unishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”

In 1991, Mr. Roberts wrote a brief in the case of Lee v. Weisman, in which he encouraged the Supreme Court to rule that it was lawful for public schools to sponsor a prayer during graduation ceremonies. Mr. Roberts wrote that while forcing students to participate in a religious ceremony was inappropriate, this would not be the case as students opposing the prayer could simply skip the graduation ceremony. However, the Supreme Court disagreed, ruling that allowing the school prayer would be coercive.

In the case of Bray v. Alexandria Women’s Health Clinic, Mr. Roberts wrote a brief in 1993 in which he argued that organizations which physically block access to abortion clinics were not discriminating against women. However, in his brief, he admitted, “only women can have abortions.” In 2000, while in private practice, Mr. Roberts argued the case of Williams v. Toyota Motor Mfg., KY., Inc., before the Supreme Court. The National Coalition for Disability Rights maintains that Mr. Roberts’ legal briefs and oral arguments “distorted the facts of the case and minimized the extent of Ella Williams disability.” The Court ruled in favor of Toyota and created a new test to determine who meets the legal definition of being disabled. Consequently, it is now more difficult for the disabled to prove violations of the Americans With Disabilities Act in the courts.

Last year, in the case of Hedgepeth v. Wash. Metro. Area Transit Auth., Judge Roberts ruled that equal protection rights provided by the Fourth and Fifth Amendments were not violated by a law that mandated that an adult who commits a crime be given only a citation, while children guilty of the same crime be arrested. Judge Roberts ruled that the harsher treatment of children encouraged “…the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.”

In the case of Acree v. Republic of Iraq, 17 U.S. soldiers who were captured and tortured during the Gulf War filed a suit under the terrorism exception to the Foreign Sovereign Immunities Act against Saddam Hussein. A lower court ruled in favor of the soldiers. However, the Bush administration appealed, arguing that since this was a time of war the Court had no jurisdiction. Judge Roberts sided with the Bush administration’s argument last year, which would strip Americans tortured in Iraq of the right to seek legal recourse.

What the fuck?

I know everyone is focusing on Roe v. Wade, and rightfully so... but to my mind his view on that landmark decision is more important as an indicator of what he stands for -or against- than as a viable threat to a woman's right to choose. Don't get me wrong, I couldn't be more in support of a woman's right to choose. It's offensive to me that we're even still discussing it as though it's a right that women had to be given; like it wasn't always an "inalienable right" in the first place. What kind of world do we live in where old, rich white guys debate what women can do with their own bodies? Every woman has the right to choose, and always should. I can understand the fear of losing that federal protection, but I'd be amazed if the Right struck Roe v. Wade down... it's simply too good for fund-raising.

So look at these arguments he has on record... discrimination is okay if it's unintentional... discrimination is okay if based on age... there's such a thing as "too much free speech..." essentially, discrimination is okay, and big money rules the world.* This isn't a fair-minded, "Federalist" moderate by any stretch of the imagination.

I guess we'll see... hell, I'm not even sure he shouldn't be confirmed (imagine the alternate, aisle-widening selection who's waiting in the wings)... but it would be nice to believe there'll be a real, open confirmation process... for a change.

Supreme Court Justices have a way of surprising. Sandra Day O'Connor was nowhere near as liberal as expected; Souter was way more liberal than everyone assumed. What's really bothering me though is how low the bar has gotten. Again, we're so relieved Dubya didn't nominate some talking point-spewing, tin-plated idealogue that this nakedly-conservative, oh-look-another-white-guy he did nominate is a relief... at least he isn't more in support of discrimination, right?

Ahhhhhhh... those are the kind of stirring words that could build a nation... or tear one down.

*The reason Dubyaco appealed the lower court's decision was that by that point, the money would have come from US coffers; they'd seized all of Iraq's assets. The soldiers didn't get paid -as the law allowed- because that would have cut into Dubya's profits.