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August 11, 2005

NARAL's anti-Roberts smear

There's been no shortage of hoopla over NARAL's 30-second ad (video available in several formats here) trying to link Supreme Court nominee and then-government lawyer John Roberts' position in the Supreme Court case of Bray v. Alexandria Women's Health Clinic with abortion clinic bombers.  [UPDATE: NARAL has pulled the ad - see update below.]  Conservative groups are (predictably) outraged; some liberals and pro-choice activists are (less predictably) unhappy with the ad and have urged NARAL to pull it; factcheck.org has weighed in against the ad; and NARAL has responded to factcheck's claims with a lengthy explanation.  Factcheck's analysis (written by a guy who looks to be barely out of college and who didn't even transcribe the ad accurately) is actually pretty weak, and NARAL gets the better of the factual argument.

But facts aren't everything.  The tag line in the ad is this:

America can't afford a Justice whose ideology leads him to excuse violence against other Americans.

As a factual statement, of course, that sentence is unexceptionable - placing such a person on the Supreme Court would indeed be a bad idea.  But the ad's obvious implication - that John Roberts is such a person - strikes me as totally unfounded.  It certainly finds no support in the government's decision to weigh in on the Bray case, which is the only evidence NARAL offers in its ad. 

Despite NARAL's protestations to the contrary, the issue in Bray was indeed fairly technical: whether the first clause of 42 USC 1985(3) (a reconstruction-era civil rights statute also known as the "Ku Klux Act"), which bars conspiracies to "deprive ... any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws," applied to certain abortion clinic blockades operated by Operation Rescue.  When the Bray case arose, prior cases had already established that section 1985(3), unlike most federal civil rights laws, reached purely private as well as state-sponsored conduct - but that such conduct had to be motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus."  The question was whether the conduct of the Bray defendants (Operation Rescue and certain individuals) had been shown to have been motivated in that way.

The answer to that question is not a simple one because the statute's language is somewhat vague, and prior cases had added non-textual glosses that were subject to interpretation.  The first Bush administration, through Roberts, argued that the answer was "no."  Six Justices (Rehnquist, White, Kennedy, Scalia, Souter, and Thomas) agreed that the answer was "no" (including two, Kennedy and Souter, who were part of the coalition upholding the core of Roe in Planned Parenthood v. Casey, as Eugene Volokh notes), and three (Stevens, O'Connor, and Blackmun) thought it was "yes."  (Souter also wanted to remand the case for more factfinding on a different issue that the government did not address.)  It's also worth noting that the trial court had found against Operation Rescue on state law trespass and nuisance claims as well as the federal civil rights claim, and the Supreme Court left those rulings undisturbed (rejecting the Bray defendants' request to invalidate them as well); the only immediate effect of the Court's ruling was to strike an award of attorney's fees, which was available under the federal claim but not the state law claims.

To me, anyway, the Government's position on the proper scope of section 1985(3) - whether or not you agree with it - has no connection to whether someone has an "ideology" that "excuses violence against other Americans."  First, Bray was not about an abortion clinic bombing (the NARAL ad never explicitly says it is, but again tries to obfuscate the issue by talking a lot about clinic bombings - one of the defendants was indeed a convicted clinic bomber, but that was not the incident at issue in the case).  Second, and more importantly, there is good evidence that Roberts does not "excuse" violence perpetrated by abortion protesters - Roberts himself stated to the Court in Bray (see p. 9) that "the United States appears in this case not to defend petitioners' tortious conduct, but to defend the proper interpretation of section 1985(3)."  Moreover, in 1986, Roberts drafted a letter regarding the possibility of pardons for persons convicted of violence in the course of abortion clinic protests which says, in part, "the President unequivocally condemns such acts of violence and believes that those responsible should be prosecuted to the full extent of the law.  No matter how lofty or sincerely held the goal, those who resort to violence to achieve it are criminals."  Seems to me the permissible inference from those two statements as to Roberts' views on "violence against other Americans" is far clearer than from Roberts' brief and argument in Bray, yet NARAL focuses exclusively on the latter and ignores the former.  Gee, I wonder why?

At the end of the day, implying that Roberts excuses violence committed by abortion clinic protesters based on his participation in the Bray case isn't much different from saying that the ACLU supports the views of the Nazis and racists whose free speech rights it routinely defends.  It's very, very tricky business to attribute a client's opinions or actions in general to the lawyer who represents that client on a specific matter, and it's often unfair to do so.  NARAL's ad is at best sloppy, at worst intentionally misleading, and is extremely unlikely to advance the debate in any meaningful way.

UPDATE: NARAL has sensibly decided to pull the ad, apparently after receiving a letter from Sen. Arlen Specter (R-Pa.), the chairman of the Judiciary Committee, asking them to do so.  Kudos to NARAL president Nancy Keenan for doing the right thing.

Posted by David at 11:38 AM in Law and Lawyers | Permalink

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Comments

Excellent comment David. Somewhat similiar to positions on abortion protests zones inear clinics.
Most liberals do not realize that the ACLU and Cong. Barney Frank ( and me)see these zones as intrusions on free speeach, but we all know they are pro-choice. I am pro choice, but the zones scare me. Talk about a slippery slope.
You can be arrested for saying the wrtong thing in the wrong place and it is not yelling fire in a crowded theater. Scary stuff.

Posted by: The troll | Aug 11, 2005 12:18:04 PM

So David, when Roberts helps prepare a legal brief in support of non-discrimination against gays and lesbians, it means something about how he really feels, and we're all supposed to congratulate and thank him for being such a great guy. ('I mean, he may have been instrumental in a hugely important Supreme Court victory for gay rights - would a little "thank you" be so difficult to muster?')

But when he prepares legal briefs in support of convicted christian nailbomb terrorists, it doesn't mean anything. He's just doing his job. ('It's very, very tricky business to attribute a client's opinions or actions in general to the lawyer who represents that client on a specific matter, and it's often unfair to do so.')

Is it safe to conclude that you're making a concerted effort to put the best possible face on John Roberts? If so, why?

Here's what Nancy Keenan of NARAL had to say about the ad controversy: "I want to be very clear that we are not suggesting Mr. Roberts condones or supports clinic violence. I'm sure he finds bombings and murder abhorrent. But still his ideological view of the law compelled him to go out of his way to argue on behalf of someone like Michael Bray, who had already been convicted of a string of bombings."

Those "non-textual glosses" you mention are the real sticking point, aren't they?

Posted by: worldcitizen | Aug 11, 2005 10:53:55 PM

Besides the fact Barge is young young, he was volunteer for a democratic campaign and has worked with National Republican Senatorial Committee???????

Posted by: turlie | Aug 11, 2005 11:51:20 PM

worldcitizen: OK, let's start with Nancy Keenan. She says she wants to be "very clear" that NARAL is "not suggesting" that Roberts "condones" violence? Sorry, but I call bullshit. Read again what her ad says: "a Justice whose ideology leads him to excuse violence against other Americans." Sure sounds to me like she's accusing Roberts of condoning violence (I see no meaningful difference between "condone" and "excuse" in this context). I'll say it again: NOTHING in Roberts' Bray brief or argument comes remotely close to "excusing" violence. Remember, the Bray case was NOT about clinic violence (it was about blockades), and the injunction had also been entered on state law grounds anyway - the major benefits from bringing the federal claim were to get into federal court and to get attorney's fees. If Keenan now wants to back away from what her ad actually says, that's fine, but then why not just pull the ad?

Now, as to my view on Roberts. I don't know the guy and I have no personal interest in whether he gets confirmed or not. However, as I have said on several previous occasions, I think he's probably as good as we are likely to get from Bush, and it could have been much much worse. Therefore, I think liberal groups like NARAL are being short-sighted in trying to derail this nomination without thinking about what would likely come next - particularly when they do it in an irresponsible way, as is the case with this ad. I don't think I'm "trying to put the best possible face on John Roberts." What I'm trying to do is to get people to look behind the shit being slung by both sides (but unfortunately particularly by the left), to understand what the cases and issues are really about, and to draw their own conclusions rather than letting the Nancy Keenans of the world, who after all have large and expensive organizations to run, do it for them.

Finally, as to your view that I have drawn different conclusions from the Romer and Bray situations, respectfully, I haven't. My comment about the "thank you" for Romer was straightforward: according to the lawyer for the Romer plaintiffs, Roberts was instrumental in helping her devise a winning strategy for that case. I'm sure that she thanked Roberts profusely after he donated his time to her cause. Seems non-controversial that Lambda, whose Colorado members were direct beneficiaries of the Court's decision in Romer that Roberts helped to bring about, might also do the same. And again, reread what I said about Roberts' work on Romer. I did not say that this proves he's a gay rights supporter. What I did say, and I continue to believe this, is that the fact that Roberts agreed to participate (pro bono) in the case "at least suggests that he was not viscerally, fundamentally opposed to the pro-gay rights result that the plaintiffs sought in that case." That also strikes me as non-controversial: lawyers are always free to decline to assist a client whose cause they find morally repugnant. Roberts didn't do that. Seems significant to me.

The rest of what I said about Romer is quite similar to what I said about Bray. In particular, this passage from my Romer post echoes the passage you quoted from my Bray post about tying lawyers to their clients' views: "This is, in other words, an excellent illustration of how difficult it is to discern a lawyer's views from his professional activities. I have no idea whether Roberts believed in his heart that the plaintiffs in Romer were right, any more than I have any idea whether Roberts believed in his heart that Roe v. Wade should be overturned, as was argued in the government's brief in Rust v. Sullivan on which his name famously appeared. And I don't think his participation in those cases tells us much about those questions."

So I think I've been consistent. If you disagree with me, that's fine, but rather than suggest that I'm part of a secret cabal to confirm Roberts, why not just explain why you think I'm wrong?

Posted by: David | Aug 12, 2005 12:03:18 AM

LOL, did I sound like I was making dark insinuations? I didn't mean to.

I'm not really interested in going out on a limb to defend the NARAL ad. (I see that they pulled it, btw, according to Reuters.) But honestly, I don't much care if it's a cheap smear. I'm more concerned with getting the nutball right to leave women and their uteruses (and all the rest of us too, for that matter) alone than I am with giving a fair shake to some hardcore Republican who has a real potential to do exactly the opposite.

I didn't misunderstand your point about the Romer case. Roberts doesn't find gays 'morally repugnant'. Great. He doesn't appear to find clinic bombers 'morally repugnant' either. I do.

I don't honestly think there's any way to stop him from being confirmed, but if we don't even pretend to care about what he's going to do, what kind of person do you think is going to be nominated when Rhenquist goes?

Posted by: worldcitizen | Aug 12, 2005 1:10:25 AM

Some people just don't get it, David

Posted by: The troll | Aug 12, 2005 9:19:06 AM

I don't much care if it's a cheap smear
You should, though. What has NARAL accomplished through this fiasco other than burn whatever credibility they had with Sen. Specter, one of the few pro-choice Republicans in the country with any clout? The fact is, Bush is the President who is going to fill this seat. If Roberts goes down, someone else will go in, and the likelihood that the next candidate will be any more "moderate" than Roberts is exactly zero. Like I said, IMHO Roberts is the best we're going to get from Bush, so I don't really see what it accomplishes to smear him. Sure, ask tough questions, demand documents, etc., but don't do dumb things like NARAL did here.

And if Rehnquist leaves office under President Bush, he will be replaced by ... a conservative! What a shock! I have never said we shouldn't care about how Roberts or any other nominee will rule. To the contrary, that's what I've been trying to figure out. But in doing that, it's important not to misread the cases he's been involved in, or to ascribe too much importance to positions he took in the course of "doing his job." I'm not saying it's irrelevant - I'm just saying be careful. NARAL's now-withdrawn ad was not careful, and they have paid the price for it. Let's try not to repeat the same mistake.

Posted by: David | Aug 12, 2005 10:01:11 AM

I think Roberts will surprise many people when he gets on the bench. He could be like a Snadra Day O'Connor or, with any luck, an Harry Blackman

Posted by: The troll | Aug 12, 2005 10:25:39 AM

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