Apparently, one of the major criticisms of Supreme Court nominee John Roberts is going to be his co-authorship of the United States' brief in Rust v. Sullivan during the first President Bush's term, which argued in part that Roe v. Wade was wrongly decided.
Roberts critics will point to this brief as evidence of an anti-Roe mindset on his part.
On the other hand, Roberts defenders will argue that Roberts was merely doing what a lawyer does: advocating on behalf of his client to achieve the client's desired goal.
Unfortunately, in this era of the 10-second soundbite and wall-to-wall cable news coverage, I doubt we'll get a nuanced discussion of the role of lawyers and political advocacy. We can think of lawyering on a spectrum. On one end would be a lawyer who goes to work for a single-issue advocacy group, such as NARAL or its pro-life equivalent. Here, I think it would not be unreasonable to infer that such lawyer probably holds judicial views similar to those of the group. After all, going to work for such an organization means that you will pretty much be doing nothing but arguing that organization's cause.
On the other end of the spectrum would be a short-term position with a wide variety of work involved, such as clerking for a federal judge. Some clerkship applicants only apply to judges of their particular political party, but many apply to judges of both parties. It may be that the first offer you get is from a judge of your less preferred party, but you nevertheless accept the offer (risk aversity kicks in at some point). Should we infer that we agree with the judge's views? Perhaps not. As the story goes, when the law clerk disagrees with the judge, the judge says, "That's my name on the commission, not yours."
A political position like the one Judge Roberts held in the Bush Administration (he was the principal Deputy Solicitor General) is somewhere in the middle, I think. The SG can expect to come across a huge variety of federal issues, of which abortion would be one. We might reasonably expect that Roberts was sympathetic to the general Republican principles of the Bush Administration; otherwise, he might not have sought such a high level position within the administration. (Though not necessarily, since career government attorneys stay in their jobs regardless of which party the President belongs to.) But that is a far cry from concluding that he necessarily agreed, on a personal level, with the arguments set forth in the Rust v. Sullivan brief. He may have, or he may not have.
Toward that end, I think the Democratic Senators, who have been reported to say that they would scrutinize Roberts' record and views during the upcoming weeks and the confirmation hearings, have taken a more judicious course than, say, NARAL, whose webpage already trumpets, " If Roberts is confirmed to a lifetime appointment, there is little doubt that he will work to overturn Roe v. Wade. As Deputy Solicitor General under the first President Bush, he argued to the Supreme Court that 'Roe was wrongly decided and should be overruled….'"
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