As Bad as We Want Him to Be?

John Roberts' detractors make him seem like a good choice for the Supreme Court.

Critics of negative campaigning say attack ads reflect poorly on the candidates they're intended to benefit. That's not necessarily true, but I do find that attack ads often reflect well on the candidates they're intended to hurt.

When an announcer gravely warns me that someone running for public office opposes gun control and wants to cut spending, I think, "Hmm. He sounds pretty good." So it is with Supreme Court nominee John Roberts, whose detractors seem intent on accentuating his positive points.

The main complaint about Roberts is that he might vote to overturn Roe v. Wade. "We continue to believe that Roe was wrongly decided and should be overruled," said a 1990 brief that he co-authored as a deputy solicitor general in the first Bush administration. "The Court's conclusion in Roe that there is a fundamental right to abortion and that the government has no compelling interest in protecting prenatal human life throughout pregnancy finds no support in the text, structure, or history of the Constitution."

Assuming Roberts agrees with the argument he made as the government's lawyer, I see no cause for alarm. Given how weak the reasoning underlying Roe is—so weak that many abortion rights supporters are embarrassed by the ruling, which they consider a legal and political mistake—it would be alarming if Roberts didn't think the case was wrongly decided.

The law has to draw a line after which a fetus becomes a person with a right to life, whether it's at conception, at birth, or somewhere in between. But the location of that line cannot be determined by constitutional analysis, and under our federal system it's a decision that is properly left to state legislatures.

Speaking of federalism, the other major objection to Roberts is that he may harbor some sympathy for the idea. In a 2003 decision by the U.S. Court of Appeals for the D.C. Circuit involving the Endangered Species Act, The New York Times notes, Roberts "seemed to throw in his lot" with "advocates of the new federalism, that is, judges and scholars who believe Congress is limited in the laws it may enact, leaving some issues to the states."

The mainstream view, apparently, holds that Congress is not limited in the laws it may enact and that the Constitution reserves no issues to the states. That position is hard to reconcile with the basic structure of the Constitution, which describes a federal government limited to explicitly enumerated powers, as reflected in the 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

According to a New York Times editorial, a judge who applies the Constitution as written is trying to "resurrect ancient, and discredited, states' rights theories," while a judge who fails to perceive limits on state abortion laws in a Constitution that says nothing about the issue is "an extreme ideologue with an agenda of stripping away important rights." I hope Roberts is guilty as charged.

One aspect of Roberts' record that I do find troubling (aside from the possibility that he won't live up to the rap against him) is his position on the legal treatment of accused terrorists. This month he signed on to a D.C. Circuit ruling that allowed the Bush administration to try people accused of terrorism before military commissions that lack the procedural safeguards of both civilian courts and standard courts-martial: Unsworn statements can be used as evidence, the defendant has no right to be present, and both the right to avoid self-incrimination and the presumption of innocence are contingent on ad hoc rules written by the Pentagon.

For the time being, these tribunals are being used only for noncitizens captured abroad. But nothing in the D.C. Circuit's decision would prevent the Bush administration from using the same streamlined procedures for people arrested in the United States, including U.S. citizens.

The Supreme Court, in a plurality opinion written by Justice Sandra Day O'Connor, has said "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." Much will depend on the meaning of "meaningful," and Roberts, as O'Connor's replacement, will be in a position to fill in the details.