Judge Roberts' Views on Government Searches & Privacy of Records Issues Are Unknown
Judge Roberts' impressive performance answering the questions of Senate Judiciary Committee members has left little doubt that he will be confirmed as the next Chief Justice. As one commentator noted, "The only real question about his prospects, it appears, is how many votes he will get from the Democratic senators."
Much attention has appropriately been given to Judge Roberts' views on the right to privacy at issue in Roe v. Wade and Griswold v. Connecticut. Little attention has been paid to other important issues, however, such as how he will approach his duties regarding the Foreign Intelligence Surveillance Act court and what his philosophy is regarding police and other government agencies' searches of individuals' property.
There were two brief exchanges between Judge Roberts and Senators Dewine and Leahy about the FISA court. Judge Roberts stated to Senator Dewine that, when he learned about the secret proceedings of the FISA court, he was surprised because he was accustomed to courts that operate "in the glare of publicity." He went on to tell Senator Dewine:
I appreciate the reasons that it operates the way it does. But it does seem to me that the departures from the normal judicial model that are involved there put a premium on the individuals involved. I think the people who are selected for that tribunal have to be above reproach. There can't be any question that these are among the best judges that our system has, the fairest judges, the ones who are most sensitive to the different issues involved, because they don't have the oversight of the public being able to see what's going on. Again, to be perfectly honest, it is a very unusual situation, and I do think it places a great premium on making sure that the best qualified people for that position are selected.
He made a similar pledge to Senator Leahy:
Congress, in setting up the court, obviously concluded there were reasons to do it that way. I was asked a question about appointing the judges to it and my response was that, given the unusual nature of it -- very unusual nature, given the usual traditions of judicial processes -- that the people appointed to it have to be of the highest quality, undoubted commitment to all the basic principles, both of the need for the court and the need to protect civil liberties. That I think is very important. Beyond that, I would just tell you I don't know enough about the operations of the court at this point and how it functions to be able to make any representations about what I would do, other than that I certainly appreciate that it's an unusual establishment and in many respects doesn't have the sorts of protections that the normal judicial process has, and that I would be sensitive to those concerns.
Full testimony here (subscription req'd).
The statements by Judge Roberts at his confirmation hearings about the need to appoint FISA judges who will protect civil liberties are, of course, reassuring. There is little in his published opinions, however, that discloses his approach to government searches generally. In two appeals in which criminal defendants challenged their convictions by appealing trial court rulings denying motions to suppress evidence, Judge Roberts and his colleagues on the D.C. Circuit unanimously affirmed the trial courts' decisions. See United States v. Lawson, 410 F.3d 735, 740-41 (D.C. Cir. 2005); and United States v. Holmes, 385 F.3d 786 (D.C. Cir. 2004), cert. denied, __ U.S. __, 125 S.Ct. 1388 (2005). These two cases are like many other appellate decisions that affirm the denial of suppression motions in criminal cases.
In another, less typical case, Judge Roberts also found a government search permissible. In Stewart v. Evans, 351 F. 3d 1239, 1242-44 (D.C. Cir. 2003), he found -- again writing for a unanimous panel -- that a federal Department of Commerce employee had no expectation of privacy in papers that she turned over to another Commerce Department employee. This decision, too, appears to follow well-established Supreme Court precedents. In short, little is known about how soon-to-be Chief Justice Roberts will approach issues that may be critical in the coming years. Those issues may include whether programs similar to the federal data mining project, the "Total Information Awareness" project, which so far has been blocked by Congress, or widespread video surveillance of public spaces, are constitutional.
Update: Further discussion of this topic in a recent Wired article by Bruce Schneier, continued on Schneier's blog.
Posted by Randy Gainer
