The following editorial appeared in today's Washington Post:
The National Abortion and Reproductive Rights Action League (NARAL) has opened its campaign against President Bush's judicial nominees on a low note. It announced its opposition to John Roberts Jr., a respected appellate lawyer whom Mr. Bush has nominated to the D.C. Circuit Court of Appeals, because as NARAL President Kate Michelman alleges in a statement he is "a threat to women's established constitutional rights" who has "made a career arguing cases that seek to limit, restrict or overturn a woman's fundamental right to choice."
Ms. Michelman's evidence for this charge is two cases in which Mr. Roberts, while serving as deputy solicitor general in the first Bush administration, represented the government in matters related to abortion rights. In one, Rust v. Sullivan, his name appears on the government's brief defending the gag rule under which federally funded family-planning clinics were barred from offering abortion counseling. The brief argued in passing, as the Bush administration contended at the time, that Roe v. Wade should be overturned. In another case, Mr. Roberts argued for the government that the activities of abortion protesters did not constitute discrimination against women.
We don't know Mr. Roberts' views on abortion, a subject about which he has not spoken publicly. Senators will be able to ask him about this and about his judicial philosophy more generally during his confirmation hearing. But it is generally a mistake to confuse a lawyer's position with that of his client. The solicitor general's office is obligated to defend acts of Congress and government policies where reasonable arguments can be made on their behalf. Those policies aren't always popular and we disagreed with the government's position in Rust. There's no merit, however, in opposing a nominee for having, as a government lawyer, represented the position of the United States.
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