John Roberts: I Am Not A Federalist

When Bill Clinton was seeking election to the presidency in 1992, he was asked by talk show host, Phil Donahue, if he had ever smoked pot. In what has now become an infamous reply that revealed so much about Clinton, he said, "I smoked, but I didn't inhale." Now comes word that President Bush's nominee to replace retiring Justice Sandra Day O'Connor is not at all a member of the conservative Federalist Society as has been reported here and by such respected news organizations as CNN, The New York Times, The Washington Post, The Los Angeles Times and Legal Times. The Washington Post reports today that "John Roberts is not, in fact, a member of the Federalist Society, and he says he never has been." According to the report, a spokesman for the White House said "Roberts recalls speaking at Federalist Society forums (as have lawyers and legal scholars of various political stripes)." The report says Robert never paid the $50 annual fee that would have made him a "full-fledged member", and that his disclosure forms submitted in connection with his 2003 nomination to the D.C. Circuit make no mention of it.

The news that Roberts is not a member of the Federalist Society apparenty surprised his friends as much as it did the media and interest groups covering his nomination. "I'm shocked that he is not," said Richard A. Samp, chief counsel of the right-of-center Washington Legal Foundation. Roberts, who has frequently spoken at Federalist Society forums, clearly participated in Federalist Society forums because he believes in its mission, even if not an active member. That he was not a dues paying member is not significant. Advance Indiana editor Gary R. Welsh belonged to the organization for a short time during the 1990s. He has not paid any dues to the organization for many years, yet he has continued to receive newsletters and updates addressed to him as a member. Dues are not fastidiously collected and enforced by the organization as a condition to membership as they are by bar organizations; they are, in effect, voluntary. And as was noted in the Washington Post story, the group's membership is confidential.

It is worth noting that news reports speculating on Robert's nomination prior to his nomination often identified him as a member of the Federalist Society. Indeed, the February 22, 2005 law.com article cited by Advance Indiana in its original report on Tuesday, June 19 entitled "Roberts Is As Conservative As You Can Get: Not Good For Gay Civil Rights", relied on interviews with Roberts' friends to identity him as a Federalist Society member. But the White House and Roberts waited nearly two days after his announcement and after many reports had already circulated about his membership in the organization and what it meant before making a denial. So why would Roberts not want to admit he is a member of the Federalist Society? The Washington Post report hit the nail on the head: "Some conservatives said that a Federalist affiliation, while a definite plus within Bush administration circles, could only provoke hostile questions from Senate Democrats -- so Roberts, in keeping with his low-key approach to conservatism, just steered clear." A Bush administration official said, "It's smart from his perspective."

Whether Roberts is a member of the Federalist Society in a technical sense is irrelevant. What the record is clear on is that Roberts thinks and believes a lot like Justice Antonin Scalia regardless of what he and the White House want the American public to believe. President Bush promised the electorate when asked what type of person he would nominate to the Supreme Court that he would name someone in the same mold as Justice Scalia or Justice Clarence Thomas, the Court's two most conservative members. And that's exactly what he did. It seems that Roberts wants it both ways. He was more than happy to associate himself with the Federalist Society to obtain notice in conservative Republican legal circles in furtherance of his judicial ambitions and now that he's been nominated, he wants to distance himself from the group's distinct conservative judicial ideology.

Justice Scalia has consistently voted as a justice to overrule Roe v. Wade. As a solicitor in a Republican admininstration, Roberts said he too was committed to overruling the decades old decision. But during his confirmation hearing for the Court of Appeals seat he now holds he reassured Senators that he was bound by precedent and as such could not over-rule Roe v. Wade. Not if your an appeals court judge as Roberts knows well, but as a Supreme Court justice it is quite another matter-you are the final arbiter of what the law means and have the power to overturn prior precedents, no matter how long-held they may be. During the upcoming term, the high court may be asked to rule on the constitutionality of the federal "Don't Ask, Don't Tell" law making it illegal for homosexuals to openly serve in the military. Given Scalia's open hostility to gay rights, as evidenced in Lawrence v. Texas, there is reason to pause before nominating a person of like mind to the Supreme Court.

Roberts' decision to disassociate himself with the Federalist Society is a thinly veiled attempt to prevent commentators and observers from analyzing and drawing conclusions about how he would decide cases as a justice. With so few cases decided during his short stent on the Court of Appeals, the public has little else to go on. He can run, but he can't hide from his long record of association with this organization. The White House and Roberts would, instead, prefer that we rely exclusively on his stellar resume. Roberts would probably deny that he is a Republican at this point if he thought it would improve his chances of confirmation by the Senate.