Supreme Court Nominee Roberts Position on Abortion is Unknown

While he was the Principal Deputy Solicitor General for the Bush Administration Roberts co-wrote the following statement in a brief for Rust v. Sullivan that is being quoted by pro-life and pro-abortion groups alike:

We continue to believe that Roe was wrongly decided and should be overruled.

However, Roberts stated during his 2003 Senate Judiciary Committee hearing that "The statement in the brief was my position as an advocate for a client."

In the Agora writer Ed Brayton explains, "As a deputy solicitor general, his job was to represent the position of the President, not give his own independent analysis."

Update: An insightful analysis of this issue by The Volokh Conspiracy includes the point that,

"...the only thing one can fairly infer from Roberts willingness to work as deputy Solicitor General in the Bush (41) administration is that he was in general agreement with the administration's legal philosphy. From there, however, one cannot assume that Roberts agreed with any particular administration position on any single issue."

On the other hand, during the same confirmation hearing Roberts responded with the following when asked his position on Roe v. Wade,

"Roe v. Wade is the settled law of the land. It's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision. Accordingly, it's the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey."

Fred Thompson, the former senator who will guide Roberts through the Senate cautioned lawmakers not to read too much into Roberts' seemingly conflicting legal positions on Roe v. Wade, the Supreme Court decision legalizing abortion.

"Many of the positions he's taken are positions he took as an advocate ... representing a client," said Thompson, whom Bush has asked to take charge of helping Roberts through the advice-and-consent process.

[the Guardian]

Nevertheless, a NARAL press lease states, "A cursory look at John Roberts’s background reveals a demonstrated record of opposition to reproductive rights and personal freedom." And, abortion rights supporters who didn't reject Judge John Roberts' nomination outright "were suspicious at the very least." [CNS News].

Augustine from Redstate correctly notes that Roberts' position on abortion is simply a guess. He writes,

My chief complaint about the nomination of Judge John Roberts to the Supreme Court was a simple one - that with several strong, confirmable potential nominees with definite positions on Roe, we should not have to guess at the nominee's position. Luttig, Jones, Garza and others all have positions on Roe that are clearer and stronger. And yet tonight, I am not just content with Roberts as a nominee - I believe it is absolutely necessary that the conservative movement give their all to ensure that he is confirmed by a hefty margin.

An editorial by Ann Coulter is making the rounds [HT: Michelle Malkin] in which she expresses significant disappointed (as only she can) to Bush’s nomination by asserting, "Stealth nominees have never turned out to be a pleasant surprise for conservatives."

She also states that the opposition of NARAL and Planned Parenthood mean nothing. "They also attacked Sandra Day O’Connor, Anthony Kennedy and David Hackett Souter," she writes.

Coulter reiterates the fact that Roberts’ seemingly pro-life statements were made on behalf of his client and do not exress his position. In fact, according to Coulter he specifically disassociated himself from those cases, dropping a footnote to a 1994 law review article that said:

In the interest of full disclosure, the author would like to point out that as Deputy Solicitor General for a portion of the 1992-93 Term, he was involved in many of the cases discussed below. In the interest of even fuller disclosure, he would also like to point out that his views as a commentator on those cases do not necessarily reflect his views as an advocate for his former client, the United States.

Josh Clayborn believes that Roberts does disagree with Roe v. Wade and writes,

I do not doubt that Roberts disagrees with the holding in Roe v. Wade, but opponents should be cautious in attributing too much of his work as deputy Solicitor General to his own beliefs.

Clayborn also disagrees with Coulter's assessment of Roberts' experience. "... Chief Justice Rehnquist had no more experience when he was selected," he wrote. "The comparison between Roberts and Rehnquist is a good one, too. Rehnquist once had Roberts as a law clerk and considers him a protege."

In the end, however, Roberts' position on the right of the unborn to life is unknown. His statements and briefs will be scrutinized and the Senate will no doubt grill him on this issue. However, with the assistance of Thompson, he will no doubt follow The Ginsburg Precedent and wisely refuse to answer questions that would reveal his position on the most controversial of issues [HT: Hugh Hewitt].

If it is any consolation, JewelsJungle posts that Roberts' wife was once the Executive Vice President of Feminists for Life, a pro-life organization. And Hugh Hewitt, a personal friend of Roberts, writes, "A home run for the president, the SCOTUS, and for the United States."

Update (7/25): La Shawn Barber comments,

I have no faith that John Roberts or anyone George Bush selects will do anything to help the conservative cause during their tenure on the Supreme Court.

We’ve had a so-called conservative court for years, and look what’s happened. Child killing is still “law of the land”