The nomination of Judge John Roberts to the U.S. Supreme Court may motivate some liberal American Jewish organizations to work against his confirmation, but it will take time for many to determine where Roberts stands on issues such as reproductive rights and the separation of church and state. President Bush nominated Roberts, a judge on the District of Columbia Circuit Court of Appeals, as a Supreme Court associate justice Tuesday night, saying he “has earned the respect of people from both political parties.”
“He has profound respect for the rule of law and for the liberties guaranteed to every citizen,” Bush said in a prime-time announcement. “He will strictly apply the Constitution and laws, not legislate from the bench.”
While much attention will focus on Roberts’ views on abortion, his confirmation also could have a profound effect on church-state issues.
Marc Stern, general counsel for the American Jewish Congress, said Roberts’ writings suggest that coercion is the necessary standard to show a violation of the First Amendment prohibition on government establishment of religion.
If that is indeed the case, Stern said, Roberts likely would vote to allow prayer in public schools and the public display of the Ten Commandments.
“But there are a lot of leaps there,” Stern said.
Roberts, 50, is seen as more conservative than several other potential nominees whose names were floated in recent weeks, including U.S. Attorney General Alberto Gonzales.
At the same time, however, he arrives without a long judicial track record and is not a legal scholar with a hefty body of published work.
Therefore, analysts say, it’s hard to gauge whether he will be a strict conservative jurist or will move toward the center.
Roberts – who once clerked for Chief Justice William Rehnquist when Rehnquist was an associate justice on the Supreme Court – worked as deputy solicitor general from 1989-1993, in the administration of President George H.W. Bush. At the time, he advocated for the overturn of Roe v. Wade, the landmark ruling legalizing abortion.
In 1991, he co-authored a brief for the government in Lee v. Weisman that supported prayer at public-school graduation ceremonies.
The Supreme Court ruled against the government in that case, outlawing graduation prayer. The court’s position was backed by a large number of American Jewish groups, but was opposed by several Orthodox organizations.
It’s unclear whether those positions represent Roberts’ personal views or those of his client at the time, the federal government. But those views are expected to frustrate liberal Jewish groups, who sought a moderate nominee in line with Justice Sandra Day O’Connor, whom Roberts would replace if confirmed.
The National Council of Jewish Women already has announced that it will oppose Roberts’ nomination because of his ostensible views on abortion. The group also opposed Roberts’ 2003 nomination to the appeals court.
“We felt his record showed him as someone who failed to defend constitutional rights, including reproductive rights,” NCJW President Phyllis Snyder said.
But others want to wait, unsure where Roberts stands. Some suggest that Roberts’ boss at the solicitor general’s office, Kenneth Starr, may have heavily influenced his writings there.
“It requires a little bit more research to determine whether he was being a lawyer in those cases, or to what extent he played a lead role in shaping what the positions were,” said David Saperstein, director of the Religious Action Center for Reform Judaism.
Saperstein, whose group advocates for abortion rights and strict separation of church and state, said Roberts’ writings clearly are at odds with the views of a majority of the American Jewish community.
Many Orthodox Jews, however, take a politically more conservative view on separation of church and state and other contentious issues.
Abba Cohen, Washington director and counsel of the fervently Orthodox Agudath Israel of America, said his organization generally doesn’t endorse or oppose nominees, but may be forced to publicly back Roberts if he faces ideological attacks.
“To the extent this becomes a largely ideological debate, that may be a factor for us when we decide how involved we will get in the process itself,” Cohen said.
Several other Jewish groups also have expressed a desire not to weigh in unless the candidate is considered extreme. Groups like the American Jewish Committee and Anti-Defamation League are expected to vet the candidate, but not to take a formal position on his nomination.
Roberts’ record would have to rise to the level of concern that those groups had with Robert Bork, a staunchly conservative Supreme Court nominee in 1987, sources told JTA, and there is little to warrant that yet.
Marshall Breger, a professor at Catholic University of America’s Columbus School of Law, said Jewish groups should not approach the debate from a political perspective.
“There are a lot of interest groups that have no choice but to throw down the gauntlet and go to battle,” said Breger, who served as White House liaison to the Jewish community in the Reagan administration.
“But it would be a denial of their past” for Jewish groups to “now approach this nomination from a political perspective,” he said.
The Republican Jewish Coalition noted that Roberts received support from prominent Jewish Democratic lawyers, including former White House counsel Lloyd Cutler and former solicitor general Seth Waxman, when he was nominated for the circuit court in 2003.
The National Jewish Democratic Council circulated an e-mail Tuesday, authored by Harvard Law School Professor Alan Dershowitz, suggesting that Jews’ status as a religious minority could be threatened if Bush names a conservative jurist.
Roberts was part of the Bush campaign’s legal team during the Florida presidential recount in 2000.
Numerous interfaith groups asked Bush earlier this month to consult Democrats before making his selection. Bush said Tuesday that he met with more than 70 senators before choosing Roberts.
“He clearly had a number of conversations with members of the Senate, which is good,” said Saperstein, whose group organized the interfaith letter. “To what extent he actually aimed at getting consensus, we shall see.”
It’s unclear how Roberts would change the high court, analysts said. If he becomes a reliable conservative vote, numerous cases that hinged on O’Connor’s moderate voice could be altered.
Nathan Lewin, a prominent Orthodox attorney, said he believed Roberts would be a strong supporter of religious liberty, and could move the court further toward placing a higher value on religious activity, compared to other interests.
“I think he is more receptive to religious liberties than other people that might have been appointed,” Lewin said.
Analysts said much will hinge on Roberts’ view of “stare decisis,” the principle of following precedent decisions. If Roberts believes jurists should not revisit issues that already have been decided, the church-state cases that already are law may stand.
“The first question is, does he start from ground zero or does he respect where the court is?” Stern said.
Roberts hinted in his 2003 confirmation hearings that he would support existing precedents.
“There’s no role for advocacy with respect to personal beliefs or views on the part of a judge,” he said. “The judge is bound to follow the Supreme Court precedent, whether he agrees with it or disagrees with it, and bound to apply the rule of law in cases whether there’s applicable Supreme Court precedent or not. Personal views, personal ideology, those have no role to play whatever.”
Barring unforeseen developments, analysts largely believe Roberts will be confirmed. Bush wants Roberts confirmed before the court reconvenes in October.
Sen. Joseph Lieberman (D-Conn.) said last week that he viewed Roberts as “in the ballpark” of confirmable nominees.
The Senate Judiciary Committee, led by Sen. Arlen Specter (R-Pa.), is expected to begin hearings later this summer.
The Archive of the Jewish Telegraphic Agency includes articles published from 1923 to 2008. Archive stories reflect the journalistic standards and practices of the time they were published.
