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August 17, 2005

Mark A. R. Kleiman Has Decided that John Roberts Does Not Belong on the Supreme Court

He writes:

Mark A. R. Kleiman: Roberts and the abortion brief: [T]he amicus [brief] was filed in support of Operation Rescue, hardly a peaceful protest movement... a civil jury in Chicago found that Operation Rescue was a racketeering enterprise.... Eugene Volokh points out that the Court, by 6-3, upheld the position in the brief, and argues that therefore the brief can't be said to have been outside the mainstream of legal thinking. Fair enough.

But that brief had political as well as legal meanings. Operation Rescue was then engaged in a violent, and largely successful, attempt to deny access to abortion to as many women as possible by closing down the clinics. The attorneys general of Virginia and New York both filed amici arguing that their states lacked the capacity to fight off Operation Rescue's efforts.

The Solicitor General's office was under no obligation to file an amicus in a civil lawsuit. Ask yourself whether the SG's office would have intervened similarly in a case involving violent protesters against U.S. support of the Contras, or Earth First, or the Animal Liberation Front, or Al Sharpton's shake-down crew, whatever the legal merits. No, I don't think so either.

If the Bush I Administration had in fact opposed anti-abortion violence and merely doubted that the anti-Klan law could properly be made to apply, it could have offered legislation making interference with the clinics a federal matter; such legislation was in fact passed under the Clinton Administration. But of course the administration did no such thing.

By arguing that the most successful terrorist campaign waged in this country since the days of the Klan was a matter for state and local jurisdiction (an echo, of course, of the argument offered against federal anti-lynching legislation in the 1930s and 1940s), Roberts and the rest of the Bush I crew was in effect backing the terrorists against their victims. That's not "excusing" violence, but it's not exactly opposing, either.

And Roberts signed the brief, and delivered the oral argument. That seems to me to be a legitimate reason for Operation Rescue to support him, and for those who support abortion rights and oppose domestic terrorism to oppose him.

Posted by DeLong at August 17, 2005 08:32 PM