MY VIOLENCE GOOD, YOURS BAD:

TV Ad Attacking Court Nominee Provokes Furor (LINDA GREENHOUSE, 8/11/05, NY Times)

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."

Weren't the demonstrators trying to put an end to violence against fellow Americans?

Posted by Orrin Judd at August 11, 2005 6:13 AM