- The Washington Times - Tuesday, July 26, 2005

Critics of negative campaigning say attack ads reflect poorly on the candidates they’re intended to benefit. That’s not necessarily true, but I do find attack ads often reflect well on the candidates they’re meant to hurt.

When an announcer gravely warns me someone running for public office opposes gun control and wants to cut spending, I think, “Hmm. He sounds pretty good.” So it is with Supreme Court nominee John Roberts, whose detractors seem intent on accentuating his positive points.

The main complaint about Judge Roberts is that he might vote to overturn Roe v. Wade. “We continue to believe that [Roe] was wrongly decided and should be overruled,” said a 1990 brief he co-authored as a deputy solicitor general in the first Bush administration. “The court’s conclusion in [Roe] that there is a fundamental right to abortion and that the government has no compelling interest in protecting prenatal human life throughout pregnancy finds no support in the text, structure or history of the Constitution.”

Assuming Judge Roberts agrees with the argument he made as the government’s lawyer, I see no cause for alarm. Given how weak the reasoning underlying Roe is — so weak many abortion-rights supporters are embarrassed by it, which they consider a legal and political mistake — it would be alarming if Judge Roberts didn’t think the case wrongly decided.

The law has to draw a line after which a fetus becomes a person with a right to life, whether at conception, birth or somewhere in between. But that line’s location cannot be determined by constitutional analysis, and under our federal system, it’s a decision properly left to state legislatures.

Speaking of federalism, the other major objection to Judge Roberts is he may harbor some sympathy for the idea. In a 2003 decision by the U.S. Court of Appeals for the D.C. Circuit involving the Endangered Species Act, the New York Times notes, Judge Roberts “seemed to throw in his lot” with “advocates of the new federalism, that is, judges and scholars who believe Congress is limited in the laws it may enact, leaving some issues to the states.”

The mainstream view, apparently, is that Congress is not limited in the laws it may enact and the Constitution reserves no issues to the states. But the Constitution’s basic structure describes a federal government limited to explicitly enumerated powers, as reflected in the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

A New York Times editorial said a judge who applies the Constitution as written is trying to “resurrect ancient, and discredited, states’ rights theories,” while a judge who perceives no limits on state abortion laws in a Constitution that is silent on the issue is “an extreme ideologue with an agenda of stripping away important rights.” I hope Judge Roberts is guilty as charged.

One aspect of Judge Roberts’ record I do find troubling (aside from the possibility he won’t live up to the rap against him) is his position on legal treatment of accused terrorists. This month he signed on to a D.C. Circuit ruling allowing the Bush administration to try people accused of terrorism before military commissions that lack the procedural safeguards of both civilian courts and standard courts-martial: Unsworn statements can be used as evidence, the defendant has no right to be present, and both the right to avoid self-incrimination and the presumption of innocence are contingent on ad hoc rules written by the Pentagon.

For the time being, these tribunals are used only for noncitizens captured abroad. But nothing in the D.C. Circuit’s decision would prevent the Bush administration from using the same streamlined procedures for people arrested in the United States, including U.S. citizens.

The Supreme Court, in a plurality opinion written by Justice Sandra Day O’Connor, has said, “Due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.”

Much will depend on the meaning of “meaningful,” and Judge Roberts, as Justice O’Connor’s replacement, will be in a position to fill in the details.

Jacob Sullum is a nationally syndicated columnist.

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