Here are the facts.
Roberts owes a lot to the Bush family. The elder Bush nominated him to the Court of Appeals in 1993 and again in 2001. The Senate failed to act on either occasion. George W. Bush nominated him in 2003, and this time the Senate consented.
On April 1, 2005, Judge Roberts was interviewed by Attorney General Alberto Gonzalez about an appointment to the Supreme Court. Karl Rove, Dick Cheney and other top officials interviewed him in May. All the while, Roberts was sitting on a case challenging the authority of the president to bypass the Geneva Convention, to bypass the "due process clause" of the Fifth Amendment, and to try "enemy combatants" at Guantanamo before drumhead military tribunals. The stakes were momentous for the president and for Roberts.
Roberts ruled for the president, and four days later the president nominated him to the Supreme Court.
Should Roberts have disqualified himself because of his connection "to any party in the proceedings?" Should he have abstained because of his "personal interests?" And does his ethical lapse matter?
Recent history says it does.
In 1968, Chief Justice Earl Warren announced his resignation and President Johnson nominated Associate Justice Abe Fortas to the chief justice position. There was opposition because of the liberal opinions of the Warren Court; because of "cronyism" (Fortas had attended strategy meetings at the White House on the Vietnam War); and because Fortas had been paid $15,000 for a few seminars at American University School of Law--not by the university but from funds raised by five clients of his former law firm (his Supreme Court salary was $39,500). Republican Sen. Griffin mounted a filibuster, which other Republicans joined.
After three days, the Democrats filed a motion to limit debate. They had a majority but not the required 60-vote margin. Fortas asked the president to withdraw his name, and remained on the bench as an associate justice.
There is more. In May 1969, Life magazine ran a story that back in 1966, Louis Wolfson created a charitable foundation for the study of juvenile delinquency and recruited Fortas to serve on the board of directors. Fortas was to receive $20,000 a year until he died. Wolfson was then indicted for stock manipulation, and Fortas resigned from the court amidst calls for his impeachment.
The Senate demanded that Fortas, like Caesar's wife, be "above suspicion."
Then, in August 1969, President Nixon nominated Clement Haynesworth, respected chief judge of the Court of Appeals for the Fourth Circuit, to fill the Fortas vacancy. Although opposed by labor and civil rights groups, smooth sailing seemed swift and sure.
But then some ethical issues arose. Haynesworth had joined an opinion favorable to a company in which he had served on the board of directors. In another instance he heard a case in which one of the litigants had a subsidiary in which Haynesworth had stock.
Should Haynesworth have disqualified himself because of "personal interest in the outcome" or because of a "connection or relation to any party in the proceeding"? Did Haynesworth meet the high ethical standards required of those who administer justice? The Senate thought not, and voted 55-45 to withhold its consent to the nomination.
Judge Roberts clearly failed the requirements of the Federal Code and the Canon of Judicial Ethics when he sat on a case so crucial to his appointment to the Supreme Court. Applying the "above suspicion" standards set in the Fortas and Haynesworth nominations, the Senate must withhold its consent to Roberts.
Might this happen? Isn't Roberts a "shoe-in," as most commentators observe? The Republicans control the Senate with 55 votes. But if the Democrats hold firm and Maine's Republican senators Olympia Snowe and Susan Collins vote against him because of Roe v. Wade, then surely there are two or three others who will desert the fold (17 Republicans voted against Haynesworth) and vote against turning the Supreme Court over to the "likes of Scalia and Thomas," as President Bush has so often said he would like to do.
Daniel H. Pollitt is professor of law emeritus at UNC-Chapel Hill. He wrote about the Roberts nomination in the Independent's Sept. 14 edition (indyweek.com/durham/2005-09-14/news.html) .