Reject John Roberts

Here’s a draft of my article for the New River Free Press, which I submitted today. ..The graphic above is from People of the American Way.I’ll be adding links to this page later after I finish my other articles.

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In July, on “The Tonight Show”, Jay Leno said, “The White House announced today that the public would not be allowed to see the memos produced by John Roberts when he represented the United States government as a lawyer. They say this is because of the attorney-client privilege. Here’s the part I don’t understand: he represented the United States, we’re the client, he’s our lawyer. Shouldn’t we be allowed see our own notes?”

What’s available of John Roberts’ record as a government lawyer, private attorney and federal appeals judge, makes progressives worry about his stands on equal opportunity, privacy, reproductive choice, and religious liberty, among many issues. But, as Benjamin Wittes noted in the May 2005 issue of The Atlantic, “[T]the threat to basic environmental protections from conservative jurisprudence is broad-based and severe.” He adds, “By tightening doctrinal requirements that limit citizen access to the courts, judges greatly reduce the legal accountability of polluters.”

Of special concern to Free Press readers is how Bush’s nominee for a lifetime appointment to the Supreme Court once offered the National Mining Association (NMA) advice on how to intervene in other people’s court cases and two years later was hired by the group to argue against citizens trying to stop coal companies from shearing off West Virginia’s mountains.

In 1999, as a partner in the Washington, DC law firm of Hogan & Hartson, Roberts’ lecture before the NMA’s conference offered “several pointers” on how the group might get their views heard by judges.

In the 1999 landmark case of Bragg v. Robertson, the now-deceased U.S. District Judge Charles H. Haden II limited mountaintop removal coal mining, finding that a stream buffer zone rule prohibiting mining within 100 feet of waters, barred coal companies from burying larger streams with strip mine waste.

The NMA was not a direct party in the case; instead, it hired Roberts and two other attorneys at his firm of Hogan & Hartson to file a “friend of the court” brief in the 4th U.S. Circuit Court of Appeals, saying the ruling “jeopardize[d] the continued viability of the coal industry in Appalachia and elsewhere.”

The brief also argued that Haden had allowed citizens to “circumvent” an administrative process to appeal permit decisions to the state Surface Mine Board. “Such a result eviscerates the very process Congress established to coordinate the various regulatory programs applicable to coal mining, and creates grave uncertainty for the members of the coal industry who rely upon mining permits as the blueprint for compliance with these programs.”

In its April 2001 decision, the 4th Circuit overturned Haden, saying the dispute instead belonged in state court. One of the judges who overturned Haden was J. Michael Luttig, who Bush considered for the open Supreme Court seat and is a close friend of Roberts.

Roberts also undermined environmental projection in 1990, when as deputy solicitor general under George H.W. Bush, he successfully argued before the Supreme Court that environmental groups lacked standing to sue the federal government over a mining project on public land.

While on the D.C. Circuit Court, Roberts was one of two judges to dissent from a 2003 decision that upheld the Endangered Species Act as a permissible exercise of Congress’ authority under the commerce clause. As an appeals court judge in 2004, he rejected a Sierra Club lawsuit seeking to force the Environmental Protection Agency to adopt a tougher standard for the emission of hazardous air pollutants from copper smelters.

On August 26, the Sierra Club issued a statement. “As information about Roberts continues to trickle out, concern about his positions grows.” David Bernard, chair of the New River Group of Sierra Club explained to the Free Press, “Mr. Roberts could have a negative impact on the environment. As you know, the word environment does not appear in the Constitution…He may be willing to further limit Federal authority to regulate environmental matters.” Annie Krochalis of the Roanoke adds “The national Sierra Club is opposed to mountain top removal projects, a position shared by the Roanoke group. The Club is supporting efforts toward full disclosure of Robert’s documents.”

On August 14, Carl Pope, the Sierra Club’s executive director had gone on record with Associated Press reporter John Heilprin to complain that Roberts “defers to economic interests over the public health, to executive agencies over the Congress, and to secrecy over the public’s right-to-know…He’s always tweaking the facts to the benefit of insiders.”

That Roberts would benefit insiders is no accident, according to Michael Scherer, Washington correspondent for first Mother Jones and now Salon.com. Writing for Mother Jones in 2003, Scherer noted that, “Now, with a sympathetic ear in the White House, corporate America is taking its legal agenda to the federal bench with a behind-the-scenes campaign of high-powered lobbying and interest-group advertising.
Senator Richard Durbin, an Illinois Democrat and former corporate defense lawyer told Scherer. “What you have is a wholesale effort to hijack the federal judiciary….They clearly want to put in a more conservative judiciary and then start stacking the deck by removing more and more cases to the federal courts.”

Scherer discovered that the nominees’ “legal approaches have been nurtured by a string of corporate foundations that fund university programs and ideological groups like the Federalist Society.”

This society has sponsored legal symposia and served as a network for rising conservative lawyers since its founding in 1982 by Bork-inspired conservatives who believed law schools had taken a tilt to the left. Membership in or association with the society has become a badge of ideological and political reliability in conservative circles.

When news organizations reported Roberts’ membership this July, the White House claimed that Roberts had no memory of belonging. As a result, The Washington Post, the Los Angeles Times, USA Today and the Associated Press printed corrections. But over the weekend of July 23-4, the Post obtained a copy of the Federalist Society Lawyers’ Division Leadership Directory, 1997-1998, listing Roberts as a member of the Washington chapter’s steering committee.

Meanwhile, the conservative Landmark Legal foundation has sued the EPA, the Forest Service, the Bureau of Land Management and the Fish and Wildlife Service to expose “both the amount and misuse of federal grants” by “extreme environmental” groups, including “political advocacy and lobbying.”

Landmark notes on its website that, “The EPA has already produced a list of nearly 14,000 grants totaling more than $2 billion made to nonprofit organizations since 1993. Landmark has used the information produced through this litigation to create the most extensive database on environmental grants awarded by the government on the Internet. This database can be easily accessed by state policy groups, property owners, businesses and others.”

The Committee for Justice leads campaign for Roberts. Since is founding in July 2002, this non-profit has pressured the Senate to approve Bush’s nominees for federal judgeships. In July 1, 2005, the day of Justice Sandra Day O’Connor’s resignation, its press release painted progressives in a highly negative light and threatened moderates who might oppose the nomination.

“[W] we’re familiar with the special interests on the other side and what is demanded by their financial backers the trial lawyers, the pornography industry, the teachers unions that want to block equal educational opportunity for the inner city. We know they will attack almost any non-liberal nominee in hysterical terms.

“We will be watching Senate Democrats and intend to link moderate and red states senators to their liberal Senate colleagues and outside groups. If Sens. Kennedy, Schumer, Durbin, Leahy, and Boxer attack, it will be Ben Nelson (Neb), Mark Pryor and Blanche Lincoln (Ark), Robert Byrd (WVa), Bill Nelson (Fla), Tom Carper (Del), Debbie Stabenow (Mich), Jeff Bingaman (NMex), Evan Bayh (Ind), Byron Dorgan (ND), Mary Landrieu (La), and Tim Johnson (SD) who will be held accountable.”

Progress for America (PFA), another conservative group, did not even wait for O’Connor’s resignation. As noted in the * issue of the NRFP, it launched a $700,000 “grassroots” ad campaign on June 22 “to warn the public that in the event of a U.S. Supreme Court vacancy, liberals and some Democrats will unleash a disinformation campaign with distorted attacks against any judicial nominee.”

On August 15, PFA dispatched 15 of Roberts’ “friends, colleagues and legal experts” to barnstorm 14 states, including West Virginia, and argue that Ruth Bader Ginsberg’s easy approval by the Senate should serve as a precedent. John Suber, a columnist for the Charleston Daily Mail advocated on August 11 that “President Bush should follow suit and simply give Judge John Roberts a recess appointment to the Supreme Court.”

Despite conservative charges that progressives would rush to judgment, People of the American Way (PFAW) did not issue its report on Roberts until August 24. It has now launched a petition drive urging Senators that “ John Roberts’ confirmation to the Supreme Court would jeopardize many of the legal and constitutional protections that Americans enjoy and would undermine the nation’s hard-won progress in civil rights and equal opportunity, privacy and reproductive choice, environmental protection, and religious liberty. Moreover, he would strengthen the power of the presidency, already dangerously expanded by President Bush.”

MoveOn.org has also started a petition drive to the Senate, stating, “In nominating John Roberts, the president has chosen a right wing corporate lawyer and ideologue for the nation’s highest court instead of a judge who would protect the rights of the American people.”

Editors’ Note: Readers wishing to read PFAW’s report and find its petition can go to Savethecourt.org MoveOn.org’s campaign is here Michael Scherer’s August 11 article on why Roberts’ business ties is here:Links to Roberts’ decisions and briefs can be found at
Salon ,the WaPo

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