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America - Andrew Stephen on Bush's judge
Published 22 August 2005
History may well record George Bush's appointment of Judge John Roberts to the US Supreme Court as the most important decision he has taken
I arrived back in Washington last week after what was, for me, an unusually long break in Europe. Far from being preoccupied with the mounting death toll in Iraq, I found DC to be in even more of a summer stupor than usual: George Bush has now spent a total of nearly nine months holidaying in Texas during his time in office, which is what he was doing four years ago when he was told that Osama Bin Laden was determined to strike inside America.
But a major political battle is already simmering, possibly ready to flare into action when Senate confirmation hearings for Bush's proposed appointee to the US Supreme Court begin on 3 September. History may well record that the appointment of Judge John Roberts - assuming that he is, indeed, confirmed - will be the most important decision Bush has taken, given that Roberts could well still be deliberating on America's political and social issues until, say, 2050.
Back in Britain, I heard that Michael Howard is attacking what he calls "aggressive judicial activism" from left-wing judges in the UK - yet another example of the pathetic copycat behaviour of the British right, which now routinely assumes that anything neo-cons complain about in the US also applies to the UK. In fact, Britain has nothing remotely like the American judicial system: appointing Supreme Court judges who can steer predictable political paths on, say, abortion, capital punishment, gay marriage or religious issues is probably the biggest prize of a presidency, made all the bigger by the insistence that such appointments are non-political and made with the highest moral rectitude imaginable.
In keeping with this, Bush spoke of Roberts as "a person of superb credentials and the highest integrity . . . [who has] devoted his entire professional life to the cause of justice . . . [who] worked his summers in a steel mill to help pay his way through college". It is one of Bush's self-sustaining myths that he selflessly promotes his American Dream like this, and I suspect that he really believes that Roberts came up the hard way and that he is giving this proletarian toiler the chance to put his true and honest stamp on 21st-century America.
The appointment is, however, about as classic an example of the promotion of aggressive judicial activism as you can get - despite it being seen, even by some Democrats, as a wise appointment. Like many ambitious lawyers yearning for this big break, Roberts kept his nose clean by avoiding leaving a plethora of right-wing opinions of the kind that wrecked the nomination of the Reagan appointee Robert Bork in 1987; now Bush lobbyists are bombarding the country with ads about the self-made lad who went all the way to Harvard and the US Court of Appeals.
But the reality is different. Roberts is the son of a steel company executive who went to a private, all-boys boarding school called La Lumiere. He worked for Bush Sr's administration from 1989-93 and then resumed as a partner for the Washington law firm of Hogan & Hartson; in 2000 he flew to Florida to advise the Republicans on how to win the legal battle to secure the disputed election for Bush Jr, where, I'm told, he conferred personally with Governor Jeb.
He has donated to the campaign funds of both Bush and other Republicans, and has given free legal advice to coal-mining companies. In one case, he sided with the police after they searched, arrested, handcuffed and took away a 12-year-old girl in a windowless police vehicle for the offence of eating one solitary chip on the Washington underground system: there was "probable cause" for the arrest, he argued. He sided against giving equal pay to women, saying that "it is difficult to exaggerate the perniciousness of the 'comparable worth' theory". On another occasion, he ruled that a man alleged to be Bin Laden's chauffeur could be denied a civil trial, held as an "enemy combatant" and subjected to a military court because, a week after the 9/11 atrocities, Congress authorised Bush to "use all necessary and appropriate force".
Roberts is hailed by Republicans as a "deeply religious" Catholic. And, despite having devoted his entire life to justice, has also somehow become a wealthy man: public documents suggest that he is worth at least $4m, with holdings in companies such as Dell, Microsoft and Time Warner.
This, then, is the real face of aggressive judicial activism: that of a well-scrubbed man in a suit who will almost certainly make highly politicised and crucial rulings from the right on US laws and freedoms for decades to come. The senior Republican member of the Senate judiciary committee, Senator Orrin Hatch, has said that the criticism of Roberts is like that of the "biblical Pharisees - you know, who basically are always trying to undermine Jesus Christ". Fireworks are possible at the confirmation hearings after Bush's long, lazy summer - but, given the times, I wouldn't bet on it.
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