Judge John Roberts is a white male who has spent his entire adult life in Washington. Those facts themselves mean nothing, but they do beg a question: What could be so compelling about Judge Roberts as a Supreme Court candidate that the White House was willing to forswear all claims on ethnic diversity and all geographical political advantage, not to mention the express desire of Laura Bush and countless other women to see a nominee of their gender?
To understand Judge Roberts's unique appeal, forget for a moment "conservative," "textualist," "original intent" and the other shorthand with which get-ahead Republican law school grads watermark their resumes. Look instead at a single case decided by Judge Roberts and two other members of the DC Court of Appeals less than a week ago.
As it happened, the day before that ruling was released, President Bush interviewed Judge Roberts at the White House. Judge Roberts, it is widely reported, aced his interview; but his appeals court decision due for publication just twenty-four hours later--about the rights of prisoners at Guantanamo Bay--was, in effect, the essay question.
Here is the question: Do the obligations of the Geneva Conventions apply to prisoners seized in Afghanistan? And can the President convene military trials, unreviewable by any courts and Congress? The case involves Salim Ahmed Hamdan, allegedly a driver for Osama bin Laden, captured on the post-9/11 battlefield and held in Camp Delta. Last year a federal judge shut down Hamdan's trial and up to a dozen other military tribunals. As convened by the Pentagon, those drumhead tribunals, wrote the lower court, amounted to a violation of the Geneva Treaty and an unconstitutional seizure of power by the President.
Whatever Judge Roberts's performance in his interview with the President, whatever his sterling report card as litigator and jurist, we can be sure there was only one acceptable answer to the Guantanamo essay question, and the judge gave it. He voted, along with his two appeals court colleagues, all three of them Reagan or Bush appointees, against Geneva Convention protections for Guantanamo captives, in scathing language ordering the military tribunals forward, empowering the President, and the President alone, to determine those prisoners' fate.
More than anything else, to fill Sandra Day O'Connor's seat on the Supreme Court, the Bush White House sought an advocate for ever-expanding executive branch powers. With a raft of antiterrorism and Patriot Act cases in the judicial pipeline, seeking relief from federal laws and international standards on interrogation, torture and the treatment of prisoners, the Bush Administration badly needs a friend like Roberts on the Supreme Court--a friend who shares its view that the President's authority in the "war on terror" is above judicial review, and counts more than acts of Congress or international treaties. In other words, if you like the Patriot Act and Guantanamo, you'll love John Roberts.
Roberts started his career as a protege of Justice Rehnquist. The Chief Justice's distinctly activist vision--of conservative means of expanding the authority of presidents while stripping back federal regulations on business and civil rights--shaped Roberts's views. Then Roberts spent years embedded in the executive branch, arguing cases in the Supreme Court on behalf of the Reagan and first Bush Administrations' efforts to promote school prayer, restrict abortion and punish flag desecrators.
Perhaps most telling is Roberts's brief track record on the federal bench on individual rights, a threshold issue not just for the left but conservative libertarians. A few years back, Washington, DC, police arrested a child for eating a single french fry on the Metro, during a zero-tolerance crackdown on subway-rule violators: arrrested her, handcuffed her, fingerprinted her, threw her in the back of a squad car and held that 12-year-old in lockup for three hours. The child's mother sensibly pointed out in a lawsuit that an adult committing the same offense would have been issued a ticket, not treated like a dangerous felon. Judge Roberts rejected the mother's plea for sanity: Arresting a 12-year-old like a suspect on Cops for eating on the subway, Roberts wrote, advanced "the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts." Even in red states, parents may not spare much enthusiasm for a judge who would lock up their 12-year-old for public consumption of McDonald's fries.
The french-fry case suggests that behind Judge Roberts's famous amiablity--which has won him influential friends in both parties--lies a far more doctrinaire personality. Whiffs of that ideological rigidity leak out of his careful opinions and briefs. Hostility to environmental regulation? Yes, at least in his ruling in a California land-development case in which he sought to weaken the Endangered Species Act. Hostility to reproductive rights? As a deputy to solicitor general Ken Starr in the Reagan years, he curried favor with the antiabortion right by adding an irrelevant footnote to his briefs in a family-planning-funding case, arguing that Roe v. Wade was "wrongly decided and should be overturned." In his appeals-court confirmation hearings, Roberts said this footnote simply reflected Administration policy, adding that he regards Roe as settled law; but his willingness to go beyond the call of duty and politicize his briefs suggests, at a minimum, enthusiasm for revisiting the issue.
President Bush may not have had a "litmus test" on Roe v. Wade, but there was one very clear litmus test: membership in the insular GOP judicial patronage network. Of the names floated as Supreme Court finalists in the past week, most were members of the Federalist Society, a GOP employment agency masquerading as conservative counterweight to the ABA. Judge Roberts--whose Supreme Court aspirations have long been widely known in Washington--is a prince of the right-wing legal family.
The President has also, after a long search, managed to find a Supreme Court candidate who in many ways looks remarkably like himself: born in the Northeast (in Roberts's case, Buffalo), heir to old-line power (his father was a US Steel executive), moved to a red state (Indiana), Ivy League-educated (Harvard, Harvard Law). From the day of his graduation from law school, Judge Roberts has held no job except those secured through conservative Republican patronage. With the selection of Judge Roberts, President Bush hopes that the Rehnquist Revolution will continue long after the ailing Chief Justice retires. The stakes in Roberts's nomination could not be higher.
It says something that the most vigorous opposition to Alberto Gonzales' nomination for U.S. attorney general emanates from recently retired military officers, not the civil rights lobby. It also says something that even as the White House, through a new Justice Department memo, sought to defuse Gonzales's record as the legal godfather of Abu Ghraib and waterboarding, word leaked of an emerging administration plan for lifetime internment of terror suspects, without trial, in a worldwide network of U.S.-built prisons. This is the first attorney general nomination of global consequence, a dimension to which Washington only slowly awakened as Gonzales headed into his testimony before the Senate Judiciary Committee.
From the day he was named by President Bush, Gonzales posed a dilemma for Democrats and civil rights organizations: Is this nominee worth fighting? Conventional wisdom counseled caution: As the first Latino AG nominee, he has a compelling personal history; he would secure easy confirmation from the Republican Senate; and besides, Gonzales is ABA – Anybody But Ashcroft. Democrats (notably New York's Chuck Schumer) immediately signaled their likely acquiescence. For weeks, most leading civil rights groups, with the exception of the defiant Center for Constitutional Rights, limited themselves to toothless calls for "vigorous scrutiny." The best liberals could hope for, went the insiders' whispers, would be to "make a record" that might inhibit a future Gonzales nomination to the Supreme Court.
On the eve of the Gonzales hearings, a different dynamic began to emerge. First the Justice Department published a memo "superseding" the elaborate justification for torture Gonzales himself had commissioned from the Office of Legal Counsel's Jay Bybee: a new memo so patently timed to the hearings that it only made questions for the nominee more compelling, especially since the White House continued to withhold crucial documents detailing Gonzales's role in the torture scandal. Notable, too, was the new memo's overt evasion of the original Bybee document's assertion of unreviewable presidential authority to classify prisoners outside the protections of the Geneva Conventions and torture laws.
Then the intervention of a dozen retired high-ranking military officers – some of them lifelong Republicans – made it clear that this is no ordinary confirmation fight. No domestic Cabinet nominee has ever been charged by generals with having "fostered greater animosity toward the United States, undermined our intelligence gathering efforts and added to the risks facing our troops around the world." These career officers – who take their oaths to the Constitution, not George Bush – believe that Gonzales' legal tactics are wrecking years of post-Vietnam efforts to prevent contemporary My Lais.
It's one thing for the ACLU to criticize Gonzales, quite another when he gets denounced by the very military leadership Republicans have long claimed to stand for. The officers' letter provided covering fire as People for the American Way – until January in the "cautious scrutiny" camp – added its full-throated opposition, and religious leaders began to speak up.
These retired officers (and Human Rights First, which sponsored their press conference) remembered what Democratic pragmatists forgot in the despairing weeks of November: For reasons ranging from ideology to personal malfeasance, seemingly secure Cabinet confirmations can spin wildly out of control when the heat is on – witness John Tower and Zoë Baird. And Gonzales is not universally admired in the Senate Republican Caucus. Lindsey Graham of South Carolina, formerly with the military's legal corps, remains disgusted by Abu Ghraib and the chain of decisions that led to it. Just days before Gonzales's hearing, Sen. Richard Lugar blasted the new White House internment-without-trial plan. (That plan, depending on the existence of authoritarian allies to do our dirty work, suggests just how cynical is the president's "democracy on the march" rhetoric.)
So the fight is joined. Gonzales, it is true, is not a fanatical religious conservative or an orthodox strict constructionist. His record suggests instead an enthusiastic apostle of the imperial executive. "Making a record" in the event of his Supreme Court nomination is at best secondary: The far more immediate danger is the record he will make as attorney general, and the record of defeatism Democrats will establish if they offer anything less than principled opposition. With the Gonzales fight, the Senate – Democrats and Republicans alike – directly confronts issues that have lurked in the background in the Bush years: questions not just of human rights for terrorism suspects worldwide but of a presidency absorbed in its own quest for unrestrained power, both domestic and international.
Viewers of the old spy spoof Get Smart will remember the Cone of Silence -- that giant plastic hair-salon dryer that descended over Maxwell Smart and Control when they held a sensitive conversation. Today, a Cone of Silence has descended over all of Washington: From four-star generals to lowly webmasters, the town is in information lockdown. Never in the nation's history has the flow of information from government to press and public been shut off so comprehensively and quickly as in the weeks following September 11. Much of the shutdown seems to have little to do with preventing future terrorism and everything to do with the Administration's laying down a new across-the-board standard for centralized control of the public's right to know.
The most alarming evidence of the new climate emanates from the Justice Department. Investigators still hold in custody 150 of the 800 people rounded up in the aftermath of the attacks. (One detainee died in custody in New Jersey.) No charges have been filed, no hearings convened. The names of nearly all those still held remain classified, as do the reasons for their incarceration. Lawyers for some of the hundreds cleared and released have told reporters of questionable treatment of their clients -- food withheld, attorneys blocked from access. Of the 150 who remain detained, only four presumed Al Qaeda suspects have been publicly named. FBI agents frustrated at the lack of progress in their interrogations of those four now mutter in the Washington Post about using sodium pentothal, or turning the suspects over to a country where beatings or other torture is used. The government's stranglehold on information about other arrests makes it impossible to know just how far agents have already gone down that road, or whether the dragnet was mainly a public-relations exercise.
Just as damaging as these detentions is an October 12 memo from Attorney General John Ashcroft reversing longstanding Freedom of Information Act policies. In 1993 then-Attorney General Janet Reno directed agencies to disclose any government information upon request unless it was "reasonably foreseeable that disclosure would be harmful." Ashcroft reverses this presumption, instead calling on agencies to withhold information whenever the law permits: "You can be assured that the Department of Justice will defend your decisions," he writes. Ashcroft is in effect creating a "born secret" standard; in the words of the Federation of American Scientists, the order "appears to exploit the current circumstances" to turn FOIA into an Official Secrets Act.
One after another, federal agencies are removing public data from their websites or restricting access to their public reading rooms. Caution is understandable, but OMB Watch and Investigative Reporters and Editors have both documented egregious examples that seem at best tangentially related to terrorism and more likely designed as butt-coverage for mid-level bureaucrats. The Energy Department has removed information from its web-posted Occurrence Reporting Program, which provides news of events that could adversely affect public health or worker safety. The EPA removed information from its site about the dangers of chemical accidents and how to prevent them, information the FBI says carries no threat of terrorism. More relevant than Al Qaeda, it appears, was hard lobbying by the chemical industry, which found the site an annoyance. The FAA pulled the plug on long-available lists of its security sanctions against airports around the country -- depriving reporters of their only tool for evaluating the agency's considerable failures to enforce its own public safety findings. At the Pentagon, news has been reduced to a trickle far more constricted than anything during Kosovo, which in turn was more restrictive than during the Gulf War. So comprehensive is the shutdown that on October 13, presidents of twenty major journalists' organizations declared in a joint statement that "these restrictions pose dangers to American democracy and prevent American citizens from obtaining the information they need."
In the short run, the Cone of Silence did most damage at the Centers for Disease Control. Could the two (at this writing) Washington, DC, postal workers who died of inhalation anthrax have been protected by earlier treatment? Did any of the CDC's doctors or scientists recommend a course of antibiotics for postal workers along the trajectory of anthrax-laden letters? Who knows? With the CDC's staff muzzled, the public and postal workers alike were left with politicians as the conduits for contradictory and inadequate information about the risk.
The uncertain dimensions of the Al Qaeda threat make equally uncertain which information the government publishes might contribute to another attack and what to do about it. But it should be noted that the World Trade Center and Pentagon attacks apparently involved data no more confidential than an airline schedule. The Administration's response has been to treat all information and press access as suspect -- an approach that will subvert public confidence and undercut legitimate media scrutiny more than it will damage Al Qaeda. During Vietnam, the famous credibility gap resided at the Pentagon, with briefings and Congressional testimony at odds with battlefield evidence. Just weeks into this war, the Bush Administration is risking a new credibility gap roughly the size of the District of Columbia.
Bruce Shapiro is a contributing editor for The Nation and national correspondent for Salon.com.