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Time's Five Questions for Judge Roberts

Tuesday, 30 August 2005 12:00 AM

2. Noting that he has pointed out that there is no mention of a privacy right in the Constitution, Time asks if he believes that a privacy right exists or will function mainly as code for whether a right to abortion exists.

Time says Democrats want to know, if he really does think Roe was "wrongly decided" as he wrote in a 1990 Justice Department brief, he would be willing to throw it out or whether that would be too radical a reaction for his taste. Time explained that conservatives hope Roberts will line up with Chief Justice William Rehnquist, Scalia and Thomas in favor of overturning Roe, which would match the quartet – David Souter, Ruth Bader Ginsberg, Stephen Breyer and John Paul Stevens – that wants to maintain it, leaving Anthony Kennedy as the swing vote. While Roe might survive, such a lineup would probably ensure that the 2003 congressional ban on partial-birth abortion is upheld.

3. How much restraint does he think one branch of government should show when it feels another is not showing enough? In other words, would he side with Congress or with the states in cases involving jurisdiction? Time cites his dissent to a ruling in which a California developer was stymied by an endangered toad. Since the "hapless toad, for reasons of its own, lives its entire life in California," Roberts argued, it was not part of any interstate commerce that Congress had the power to regulate.

If that view prevailed, many statutes protecting the environment, civil rights and worker safety could join the toad on the endangered list, Time opines. Roberts' dissent is a "pretty big deal," says University of Chicago Law School professor Cass Sunstein. "The fact that he was willing to challenge the Endangered Species Act as a brand-new judge, when lots of his Republican colleagues went the other way, indicates that he really wanted to make a statement."

"We've gotten to the point these days," Roberts said in a 1999 interview on NPR, "where we think the only way we can show we're serious about a problem is if we pass a federal law ... The fact of the matter is, conditions are different in different states." And state laws, he argued, are "more attuned to the different situations in New York as opposed to Minnesota."

4. Can one use discrimination to battle discrimination? Says Time, "He took a dim view of initiatives to redefine the Voting Rights Act, which he thought should ban only intentional efforts to disenfranchise black voters – hard to prove – and not practices that some civil rights activists claimed had the effect of limiting black voting rights. He argued that Congress could reject court-ordered busing plans on the grounds that they did not prevent segregation but promoted it by encouraging ‘white flight.'

He complained that theories about "comparable worth," advocated by even some Republican legislators to achieve pay equity between women and men, were "anticapitalist" and could lead to reverse discrimination. "It is difficult to exaggerate the perniciousness of 'comparable-worth theory,'" he wrote. "It mandates nothing less than central planning of the economy by judges." When a group of female Republican House members wrote the White House in support of the theory, Roberts drafted a memorable response: "Their slogan may as well be, 'From each according to his ability, to each according to their gender.'"

5. Raising a question it would never think of asking a Jewish nominee, for example, Time wants to know if as a faithful Catholic would he be influenced by his religious beliefs, especially in the area of the appropriateness of the presence of religion in the public square.

Time says that Democrats suspect Roberts will be more willing to reintroduce religious symbols and language into public space. Senators, particularly New York's Charles Schumer, have said they want to probe Roberts' views on church–state issues like the faith-based initiatives that President Bush has promoted.

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2. Noting that he has pointed out that there is no mention of a privacy right in the Constitution, Time asks if he believes that a privacy right exists or will function mainly as code for whether a right to abortion exists. Time says Democrats want to know, if he really...
Time's,Five,Questions,for,Judge,Roberts
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2005-00-30
Tuesday, 30 August 2005 12:00 AM
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