What don’t they want Americans to know about Roberts?

Progress for America, a lobbying group devoted to advancing the Bush administration’s legislative and political agenda, has launched a 60-second television ad urging John Roberts to refuse to answer senators’ questions “that would force him to pre-judge cases.” This is a classic “straw man” argument – virtually no one is suggesting that Roberts should answer questions about cases coming before the Court. The Progress for America ad seems clearly designed to create a rationale for Roberts to refuse to answer legitimate questions about his approach to the Constitution on important issues that Americans are interested in knowing about, such as the constitutional right to privacy.

The ad plays to the same themes as a misleading four-minute video produced earlier by Progress for America. People For the American Way has previously documented the deceptions in Progress for America’s longer video – see www.savethecourt.org/ginsburg.

By selectively editing clips from Ginsburg’s testimony, the ad implies that Ginsburg refused to answer senators’ questions on many important topics, when in fact she gave clear answers to questions that Roberts should also be expected to answer, such as the basis for the Constitution’s protection of the right to privacy. The ad also ignores the fact that Ginsburg had written more than 700 opinions over her 13 years as a federal judge, giving senators a much clearer record of her judicial philosophy than they can now get from Roberts’ short tenure on the federal bench.

The real “Ginsburg precedent” is very different from the one portrayed by Progress for America. Ginsburg, for example, answered a question from Sen. Patrick Leahy (D-VT) about whether there is a constitutional right to privacy and where it is grounded in the Constitution:

“There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed most vividly in the Fourth Amendment: The government shall not break into my home or my office, without a warrant, based on probable cause; the Government shall leave me alone. The other is the notion of personal autonomy. The Government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my Government, basic decisions that affect my life’s course.”

Ginsburg also candidly answered then-Senator Hank Brown’s (R-CO) question about the constitutional underpinnings of a woman’s right to choose an abortion:

“[Y]ou asked me about my thinking about equal protection versus individual autonomy. My answer to you is that both are implicated. The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”

Will John Roberts give similarly clear answers to questions about whether he believes in a constitutional right to privacy, or a woman’s right to choose?

Americans strongly believe Roberts should answer those questions. Polling conducted July 29 – August 1 by Peter Hart for the Alliance for Justice found that:

• 68 percent of Americans believe the Senate should consider a nominee’s positions on legal and constitutional issues as well as qualifications and character
• 67 percent believe the American people have a right to know where the nominee stands on important constitutional issues such as civil rights, the right to privacy, and federal protections for the environment and workers, before confirmation
• 63 percent believe it would be appropriate for senators to vote against John Roberts’ confirmation if he refuses to answer some questions from senators about his views on major constitutional issues.
• 71 percent believe the Senate should be able to see all documents related to Roberts’ government service before voting on confirmation
• 62 percent believe it would be appropriate for senators to vote against Roberts’ confirmation if he and the White House refuse to provide the Senate with some documents related to his government service.

The American people have a right to know whether John Roberts would uphold their rights, freedoms, and legal protections if he were confirmed to a lifetime seat on the U.S. Supreme Court. Senators should ignore the misleading propaganda from Progress for America, and should insist on getting the answers before it’s too late.