Abortion Smear

Friday, August 12, 2005

IN GENERAL, discussion of the nomination of Judge John G. Roberts Jr. to the Supreme Court has taken place on a civilized level. Democratic senators, by and large, have appropriately reserved judgment; disputes over documents, while pointed, have been polite. The ad released this week by NARAL Pro-Choice America is a distressing exception. Seizing on his role in a 1993 Supreme Court decision as a lawyer for the government, it graphically -- and wholly unfairly -- seeks to tar Judge Roberts with being an apologist for abortion clinic bombings.

In releasing the ad, Nancy Keenan, NARAL's president, said in a statement that she wanted "to be very clear that we are not suggesting Mr. Roberts condones or supports clinic violence." That's funny, because the ad does precisely that. It opens with the scene of a bombed clinic -- a clinic attacked years after the case in question -- and then shows a victim of the bombing. An announcer intones that "Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber." It closes with the announcer telling viewers that "America can't afford a justice whose ideology leads him to excuse violence against other Americans." A reasonable viewer can only conclude that Judge Roberts -- who served as deputy solicitor general in the administration of George H.W. Bush -- had somehow justified or defended a clinic bombing.

What really happened? The solicitor general's office filed a friend-of-the-court brief in 1991 in a case dealing with whether federal courts could use an 1871 civil rights law to prevent physical blockades of clinics by antiabortion protesters. One of the named defendants had earlier been convicted in connection with clinic bombings, but that was not the subject of the case. The administration's stance in the case and others like it was, while aggressive and controversial, not extreme or legally untenable. Indeed, it prevailed at the Supreme Court on a 6-to-3 vote. In no sense did the brief defend clinic violence, much less bombings. Indeed, Judge Roberts began his oral argument by describing the conduct of the protesters as "tortious" and emphasizing that it was illegal under state law. The question in the case was whether federal law at that time provided additional grounds for legal action. Arguing that it did not is not the same as excusing clinic bombings.

NARAL is certainly within its rights to disagree with the position the government took in the case. But the impression it creates with this ad is not an argument but a smear-- a smear that will do less to discredit Judge Roberts than it will the organization that created it.

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