TV Ad Attacking Court Nominee Provokes Furor
Several prominent abortion rights supporters as well as a neutral media watchdog group said the advertisement was misleading and unfair, and a conservative group quickly took to the airwaves with an opposing advertisement.
The focus of the 30-second spot, which Naral Pro-Choice America is spending $500,000 to place on the Fox and CNN cable networks, as well as on broadcast stations in Maine and Rhode Island over the next two weeks, is on an argument in an abortion-related case that Judge Roberts made to the Supreme Court in the early 1990’s, when he was working in the first Bush administration as the principal deputy solicitor general.
The question before the court was whether a Reconstruction-era civil rights law intended to protect freed slaves from the Ku Klux Klan could provide a basis for federal courts to issue injunctions against the increasingly frequent and violent demonstrations that were intended to block access to abortion clinics.
The court heard arguments in the case, Bray v. Alexandria Women’s Health Clinic, in October 1991 and then again the next October before finally ruling in January 1993, by a vote of 6 to 3, that the law did not apply. Justice Sandra Day O’Connor, whom Mr. Roberts has been nominated to succeed, voted in dissent. The decision prompted Congressional passage of a new federal law to protect the clinics.
Mr. Roberts participated in both arguments, presenting the administration’s view that the law in question, the Ku Klux Klan Act, did not apply to the clinic protests. In earlier cases, the Supreme Court had parsed the law, which prohibits conspiracies to deprive ”any person or class of persons of the equal protection of the laws,” as requiring proof that a conspiracy was motivated by a ”class-based, invidiously discriminatory animus.”
In this case, two lower federal courts had found that the clinic protests met that test because they were a form of discrimination against women. But Mr. Roberts argued that the demonstrators were not singling out women for discriminatory treatment but rather were trying to ”prohibit the practice of abortion altogether.” He told the court that even though only women could become pregnant or seek abortions, it was ”wrong as a matter of law and logic” to regard opposition to abortion as the equivalent of discrimination against women.
The administration’s position initially attracted relatively little attention when it entered the case in the spring of 1991. But after a summer of violent protests at clinics in Wichita, Kan., during which Mr. Roberts and other administration lawyers opposed the authority of a federal judge there to issue an injunction, the situation had become politically sensitive. Mr. Roberts began his second argument by saying the administration was not trying to defend the demonstrators’ conduct but rather to ”defend the proper interpretation” of the statute.
That distinction is blurred in Naral’s advertisement, prepared by Struble Eichenbaum Communications, a Democratic media company here. The spot opens with a scene of devastation, the bombing of an abortion clinic in Birmingham, Ala., in January 1998. Emily Lyons, a clinic employee who was seriously injured in the attack, appears on the screen. ”When a bomb ripped through my clinic, I almost lost my life,” she says.
Mr. Roberts’s image then appears, superimposed on a faint copy of the brief he signed in the 1991 case. ”Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber,” the narrator’s voice says. The spot concludes by urging viewers to: ”Call your senators. Tell them to oppose John Roberts. America can’t afford a justice whose ideology leads him to excuse violence against other Americans.”
According to Factcheck.org, a nonpartisan project of the Annenberg Public Policy Center at the University of Pennsylvania that monitors political advertisements and speeches for accuracy, ”the ad is false” and ”uses the classic tactic of guilt by association.” The imagery is ”especially misleading” in linking the 1998 clinic bombing to the brief Mr. Roberts signed seven years earlier, Factcheck said in an analysis at its Web site, www.factcheck.org, under the heading: ”Naral Falsely Accuses Supreme Court Nominee Roberts.”
As the Factcheck critique began to be trumpeted by conservative groups early Wednesday, Naral prepared a rebuttal of what it called ”glaring errors” in the organization’s analysis. Michael Bray, a defendant in the case, had been convicted several years earlier for his role in bombing abortion clinics, Naral said, adding that since the Bush administration and Mr. Bray were on the same side of the Supreme Court case, ”John Roberts did, therefore, side with a convicted clinic bomber” as well as with Operation Rescue, ”a violent fringe group.”
Naral’s president, Nancy Keenan, defended the advertisement during an interview in her office here.
”It’s tough and it’s accurate,” Ms. Keenan said.
”It has done exactly what we expected it to do,” she added, namely to provide a ”wake-up call” about the stakes for reproductive freedom at issue in the current Supreme Court vacancy.
”Conventional wisdom says the Roberts nomination is a done deal, so it behooves us to make sure the American public knows who John Roberts really is,” she said.
Ms. Keenan, a former Montana state legislator who has headed the organization for the past year, said it was important to note that because the federal government was not a party in the Bray case, the administration’s participation in the Supreme Court appeal was voluntary.
”They chose what side to take,” she said. ”That tells us something.”
Within the larger liberal coalition of which Naral is a part, there was considerable uneasiness about the advertisement, although leaders of other groups generally refused to speak on the record. One who did, Frances Kissling, the longtime president of Catholics for a Free Choice, said she was ”deeply upset and offended” by the advertisement, which she called ”far too intemperate and far too personal.”
Ms. Kissling, who initiated the conversation with a reporter, said the ad ”does step over the line into the kind of personal character attack we shouldn’t be engaging in.”
She added: ”As a pro-choice person, I don’t like being placed on the defensive by my leaders. Naral should pull it and move on.”
Walter Dellinger, a former acting solicitor general in the Clinton administration and longtime Naral supporter, sent a letter on Wednesday to the chairman of the Senate Judiciary Committee and its ranking Democrat, Arlen Specter of Pennsylvania and Patrick J. Leahy of Vermont, respectively. Mr. Dellinger said he had disagreed with Mr. Roberts’s argument in the Bray case but considered it unfair to give ”the impression that Roberts is somehow associated with clinic bombers.” He added that ”it would be regrettable if the only refutation of these assertions about Roberts came from groups opposed to abortion rights.”
A conservative group, Progress for America, said it would spend $300,000 to run ads, beginning Thursday, on the same stations on which the Naralad is appearing. ”How low can these frustrated liberals sink?” its advertisement asks.
CORRECTION-DATE: August 13, 2005
A front-page article yesterday about the furor caused by a television advertisement criticizing Judge John G. Roberts Jr. for an argument he made before the Supreme Court in an abortion-related case included an erroneous report from the ad’s sponsor, Naral Pro-Choice America, about the involvement of one cable network. While Naral bought time on CNN and on stations in Maine and Rhode Island, it did not book the ad on the Fox News Channel. (A spokesman said Naral had intended to advertise on Fox but had never struck a deal — a decision of which he was unaware when he issued the list to the press.)
An article on Wednesday about comments by Judge John G. Roberts Jr. on the evolution of law governing end-of-life issues surrounding the Terri Schiavo case misstated a word in a 1928 Supreme Court dissent by Justice Louis D. Brandeis cited by Judge Roberts. The opinion spoke of ”the right to be let alone” — not ”left” alone.
The article also misstated the year in which Judge Roberts filed a brief with the Supreme Court arguing, successfully, that a century-old antidiscrimination statute could not be used to quash protests at abortion clinics. It was 1991, not 1971.
The article also referred incorrectly to Michael Bray, a plaintiff in that case, Bray v. Alexandria Women’s Health Clinic. (This error also occurred in some copies yesterday, in an article about an anti-Roberts advertisement placed and then withdrawn by Naral Pro-Choice America.) Mr. Bray, who had been convicted of abortion-clinic bombings, was just one of seven plaintiffs; the lead plaintiff was his wife, Jayne.
This article originally appeared in the 10 August 2005 edition of the New York Times.