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Fundamental Freedoms at Stake if Nominee Roberts is Confirmed

July 26, 2005
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Some will say that President Bush, in nominating D.C. Circuit Court Judge John Roberts to the U.S. Supreme Court, has selected a fine attorney with a distinguished academic record and a host of friends willing to testify to his brilliance, modesty and good character. But when the stakes are this high, we need to look at the truth — the whole truth. And unfortunately Judge Roberts — now poised to take a lifetime position as a final arbiter of the U.S. Constitution — has chosen in his career to erode fundamental rights, rather than defend them. Roberts has been openly hostile to the fundamental right to privacy affirmed by Roe v. Wade, and he implemented legal strategies that would lead to its reversal. He argued before the Supreme Court in Rust v. Sullivan in support of a gag rule on doctors working in family-planning programs receiving federal funds, effectively barring them from counseling patients on abortion as an option. And though the merits of Roe were not at issue in the case, he gratuitously stated that “Roe was wrongly decided and should be overruled.”

Some will say that in the confirmation hearing for his current seat on the U.S. Court of Appeals for the District of Columbia Circuit, Roberts acknowledged that Roe is “settled law.” But that is of little comfort. The truth — the whole truth — is that as a Supreme Court justice, Roberts would have the opportunity to create precedent, not merely follow it. And the outright reversal of Roe v. Wade is not necessary to render its protections moot. Roe has already been wounded by many unreasonable restrictions and will die a death by a thousand cuts should Roberts confirm our fears and join his philosophical allies on the Supreme Court.

And make no mistake: The clock is ticking. The court is expected to hear a case in its next session considering whether a woman’s health can be held hostage to laws restricting medical abortion options.

Roberts has also acted against the bedrock of separation between religion and state. In Lee v. Weisman he argued in favor of clergy prayers at public-school ceremonies and in all aspects of “our public life,” as expressions of our “nation’s religious heritage.” He argued to replace the standard that forbids government officials from acting with a religious agenda, endorsing religion, or excessively entangling government and religion with a more permissive test allowing government to sponsor religious expression that is not “coercive.”

Some will say these are mere technicalities. But the truth — the whole truth — is that this is a very slippery slope. If we lose one right, we can lose them all. As Jews we know what it means to have liberties stripped away. We know what it means to have our privacy threatened. And we know what it means to be compelled to suppress our own religious beliefs in order to survive in a society that imposes another religion’s beliefs on us instead.

Simply put, the hallmark of democracy is religious freedom. The Jewish community has thrived in this country largely because of this freedom. And we will suffer greatly if that freedom is lost.

The proverbial writing is on the wall. There is nothing in Roberts’ writings or public utterances that would lead us to believe he would rule contrary to the arguments he has made in his career if given the latitude to do so. He will certainly have this latitude on the Supreme Court.

Roberts has allied himself with the most conservative forces in the legal profession by the positions he has taken. And when predicting how any nominee might rule on the court, it is certainly appropriate to look where he places himself, what clients he has chosen and what views he has selected to espouse for them. It defies the lessons of human experience to think that Roberts will change the views held for his entire adult life once on the Supreme Court bench.

Some will say there is nothing for us to do but wait and see if the Senate confirms Roberts. But the truth — the whole truth — is that each of us has a voice and a stake in this confirmation process. If he is confirmed, Roberts is likely to set the course for the court and our personal liberties for decades to come.

In the next two months, as our senators consider the future of John Roberts, we should consider our own future. Groups like the National Council of Jewish Women have been speaking out to the decision makers in Washington, leading the charge to protect our fundamental freedoms. Isn’t it time we all took a stand? Our senators need to hear from us. If not now, when?

Phyllis Snyder is president of the National Council of Jewish Women ( NCJW is a volunteer organization, inspired by Jewish values, that works to improve the quality of life for women, children and families and to ensure individual rights and freedoms for all through its network of 90,000 members, supporters, and volunteers nationwide.

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