By PLS
Retiring Associate Justice Sandra Day O’Connor is “somewhat disappointed.” President Bush has not nominated a woman to replace her. I’m disappointed, too.
It's very possible that the next time the Supreme Court considers Roe v. Wade, the decision will be made by eight men and only one woman. O’Connor was considered to be a conservative when she was appointed, but she did not take a doctrinaire, absolutist approach to the abortion issue. As time went on, she won the respect of mainstream Americans and many pro-choice advocates even as she was less and less admired by the Christian Right.
What's more, to fill O’Connor’s position, President Bush has nominated a man who is, according to most accounts, an “observant” Catholic.
Let me hasten to explain something here. I am not happy to have mentioned the Catholic part, but the Church itself has forced me to do so. During the 2004 Presidential election prominent Church leaders inserted themselves directly into the American political process. They asserted that political leaders who failed to work, not only in their personal lives but in their official capacities, to reverse the legality of abortion in the United States could and should be denied the precious sacrament of communion. Then Cardinal Ratzinger, now Pope Benedict XVI, has not indicated that such threats were inappropriate. But why should he? He has never sworn an oath to uphold the Constitution of the United States of America. And it is only fair to say that some Catholic bishops have been more sensitive to the constraints on public office-holding believers of any faith in a country like the United States whose founding principle is the non-establishment of any one religion or sect.
So, depending on which bishop he listens most closely to, an Associate Justice John G. Roberts would have his right to participate in a key rite of his church on the line should he be called upon to make a decision involving Roe v. Wade.
Evidently the Bush administration has mounted a campaign to assure anti-abortion Christians that, despite the lack of a paper trail of speeches or decisions on abortion, Roberts would make the "right" decision, eg, to abolish the constitutional right to abortion. For one thing, his wife is an outspoken leader of Catholic-inspired anti-abortion groups. Anti-choice groups also point to a case he argued while he worked for Richard Nixon’s Justice Department. Roberts contends that forcefully presenting the case for a client says nothing about a lawyer’s personal opinions. Conservative Christians insist you can’t be passionate about a case unless you also believe in it.
For those of us who are concerned about the right to choose, however, there is an interesting case for which Roberts wrote the decision during his two short years on the Court of Appeals. It has to do with whether a husband and wife may be assumed to be one in every way.
In United States v. Mellen (2004) Federal Appeals Court Judge John G. Roberts wrote that the government could not hold the husband of a woman who had defrauded the Department of Education of hundreds of thousands of dollars worth of electronic equipment equally responsible for the theft simply because of “the closeness of the Mellens’ marriage.” Roberts conceded that Luther Mellen might be held complicit in so far as some of the equipment had been given to the couple’s son, but the government’s case for Luther’s role in the disposal of the rest of the equipment was too weak to credit.
Roberts is considered to be a judge with respect for institutions and precedent. Is it not just possible that a jurist with a scrupulous regard for the Constitution may find it’s not so easy to trash Roe v. Wade, despite the pressure of many in his church? And his wife?