Briefly stated, Judge Robers is wrong for the Supreme Court of the United States because he has little or no regard for individual or human rights. In addition, he seems convinced that there is no governmental responsibility to carry out the will of the polity. And, indeed, he hangs all determination of right and wrong on the notion of intent.
Never mind that the road to hell is paved with good intentions.
After an admittedly cursory review of the career of JudgeJohn G. Roberts, Jr. as outlined in dkosopedia, I have come to the conclusion that in no sense can Judge Roberts be described as a conservation whose primary object is to follow the Constitution of the United States.
Why do I say that? It seems quite clear from his positions on a variety of issues that Judge Roberts rejects the delegation of all rights not assigned to the federal government or the states to the people. Indeed, he sees no God-given or human individual rights at all, beyond those specifically enumerated. So, of course, since he doesn' t consider American citizens as having human rights, foreign captives detained on a foreign land mass (Guantanamo, Cuba) don' t have any either, as he argued in a recent decision.
On the other side of the leger, or because there are no individual rights, there aren' t any individual or government responsibilities, either. Like the phrase " of the people," " providing for the general welfare" would seem to be just a nice sounding catch-all. Indeed, as some of his rulings on environmental issues demonstrate, the federal government has no responsibility to even carry out legislative directives. In Judge Roberts' world, the role of the legislature would seem to be to pass rules and regulations that make governing (telling people what not to do) easier for the executive. Thus, any directions that the legislature might give to the executive can easily be ignored if they do not mesh with the intent of the executive.
If we think of an act, any act, being made up of an actor or agent (subject) and that which is acted upon (object) then it seems pretty clear, if my reading of Judge Roberts positions is correct, that subject and object are really irrelevant. What counts is the actor's intent. So, for example, if the government does not intend to discriminate against certain classes of people, then their exclusion from full participation must be considered as simply accidental. It' s nobody's fault. Naturally, Judge Roberts is opposed to affirmative action requirements. Similarly, if people are prevented from voting, unless it can be proven that someone had the intention of keeping them from the ballot, there is no recourse in the law.
Not only is intent almost impossible to prove in most circumstances, as Justice Souter has pointed out, but intent, as we are all now well aware, tends to be hidden in a veil of lies by all but the most simple criminals. If we want to consider some more consequences of this perspective, the exclusive focus on intent, we would find, for example, that a spouse who has been beaten black and blue would have to prove that the perpetrator actually meant to harm her, instead, as he might explain, of merely applying corrective measures to punish some forbidden behavior on her part. Or we might be confronted with a father who ascribes his impregnation of his teenage daughter as intended to teach her about sexual relations and their consequence (the pregnancy she will have to carry to term because medical intervention would keep her from learning the lesson well).
While one might be tempted to agree that there is no provision in the Constitution to permit or mandate the regulation of medical services, prohibiting certain citizens from gaining equal access to health care would seem to be a violation of the equal protection clause. But, again, Roberts does not seem to recognize ANY government obligations. And, when it comes to rights, it' s clear that the government has most, groups have some and the individual effectively has none. Even freedom of speech, for example, applies to the speech, not the speaker.
Perhaps he' s just overlooking the social contract upon which our government is supposedly based. Perhaps Roberts simply doesn't understand that when an individual cedes some of his God-given inalienable right for the greater benefit of the whole, he' s entitled to get something back.
There' s one position that s perhaps particularly relevant to considering whether Roberts is suited to the Supreme Court. In the summary of his career it' s described as an argument on Habeus Corpus in which Roberts joined a unanimous opinion, denying the claim of a prisoner who argued that by tightening parole rules in the middle of his sentence, the government subjected him to an unconstitutional after-the-fact punishment, which was overturned by the Supreme Court (Fletcher vs District of Columbia) This argument, of course, exactly mirrors the strategy Roberts is reported to have suggested to resolve the 2000 election in Florida--that the legislature simply change the rules governing the selection of delegates to the electoral college in media res.
I leave it to others to decide whether this demonstrates a disregard for the fundamental principles of the law. I find his cavalier attitude quite shocking. Though it is consistent with the belief that the fundamental purpose of the law is to govern or control individual behavior and hand out punishment when individuals intend to do wrong.
No doubt, Roberts' position on governmental responsibility makes him attractive to those who are (rightfully) concerned about the significant liability the government is creating in failing to adequately protect the troops in Iraq from environmental insults. Perhaps there are those who look forward to letting the government off the hook with the argument that it didn t intend for the soldiers to become disabled because of environmental exposures. I happen to think that would be morally and legally wrong and hope that our support for the troops will keep this fellow off the Supreme Court.
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According to the New York Times, Roberts made the following replies to questions during his last confirmation hearings:
"I do not have an all-encompassing approach to constitutional interpretation; the appropriate approach depends to some degree on the specific provision at issue," Judge Roberts wrote in response to a written question during his 2003 confirmation to the federal appeals court in Washington. "Some provisions of the Constitution provide considerable guidance on how they should be construed; others are less precise.
"I would not hew to a particular 'school' of interpretation," he added, "but would follow the approach or approaches that seemed most suited in the particular case to correctly discerning the meaning of the provision at issue."
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What I find interesting is the repeated use of the word "provision." What it tells me is that Roberts is focused only on what's IN the Constitution and not what's been left out and presumably "left to the. . . people" which is where our individual human rights reside.
Looks like Roberts is a "if it ain't there, it doesn't exist" kind of guy.
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Also, while his Catholicism should not be held against him, one might ask how he reconciles the belief in original sin with the commitment to "innocent until proven guilty."
Posted by Hannah at July 22, 2005 09:34 AM