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August 26, 2005
The Bramble Bush
by Kevin Morford

Roberts Rules Out of Order

     Analysts from all parts of the political spectrum have been providing their spin to the recent nomination of Judge John Roberts to the U.S. Supreme Court. For the most part, they have been focusing on his political views, and trying to figure out what they portend for the future direction of the Supreme Court. There are good reasons to be concerned about his political views, and I share some of those concerns. Yet there is another issue that has recently emerged which concerns me to a much greater degree. It raises serious questions about his judgment and his ethical fitness to be any kind of judge at all.

     Roberts is a judge on the Washington D.C. Circuit Court of Appeals. In December of 2004, Roberts learned that he was to be a member of a three judge panel which was to decide an appeal in the case of Hamdan v. Rumsfeld. At issue in the case were questions as to whether the Geneva Conventions applied to prisoners held by the U.S. at its military base in Guantanamo Bay, and whether the U.S. could put some of those prisoners on trial using military tribunals. President Bush was named as a defendant in the lawsuit, because he had signed the findings that were the basis for putting the plaintiffs in the case on trial.

Here is the time line relevant to this issue:

December, 2004: Roberts learns he is one of the judges in the case.

April 1, 2005: Roberts interviews with Attorney General Gonzales regarding a possible appointment to the U.S. Supreme Court, probably in anticipation of Chief Justice Rehnquist retiring.

April 7, 2005: Roberts hears oral argument in the case against Rumsfeld and Bush.

April 7 through July 14, 2005: Roberts is interviewed many times regarding a possible appointment to the Supreme Court, by such persons as Vice President Dick Cheney, Chief of Staff to Cheney, Louis Libby, White House Chief of Staff Andrew Card, White House legal counsel Harriet Miers, and Karl Rove.

July 1, 2005: Supreme Court Justice Sandra Day O’Connor announces her retirement from the court.

July 15, 2005: Roberts interviews with President Bush on the same day that the decision comes out in favor of Bush and Rumsfeld. Roberts votes in favor of Bush on the issues before him in the case.

July 19, 2005: Bush nominates Roberts to the Supreme Court of the United States.

     This is shockingly unethical behavior. Judges are supposed to avoid even the appearance of impropriety. Here we have a judge who is interviewing to be appointed to the highest court in the land by a person who is a party in a case which is pending before the judge. He is being interviewed while he is making up his mind about whether to vote for or against the person who will nominate him for the job. He votes in favor of that person, and is then nominated to the Supreme Court four days later.

     It’s not as if Roberts lacked ethical options. Once he knew he was being considered for appointment by a person who was a party in a case before him, he could have indicated that he did not want the job. Or if he did want the job, he could have recused himself from the case. But to stay on the case while meeting privately and secretly on multiple occasions with representatives of a person who was a party in a pending case shows a shocking disregard for the ethical rules that federal judges are required to follow.

     These facts need to be fully investigated by the members of the U.S. Senate who will vote on whether to confirm Robert’s nomination to the Supreme Court. Write to your Senators and ask them to hold public hearings on this important issue, so the full facts can be brought out. For more information on this issue, see the August 18, 2005 broadcast of Democracy Now, available in the archives at www.democracynow.org.





Kevin Morford is a political activist and an attorney in private practice in the Anchorage area.  He can be reached at kmorford@insurgent49.com.
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