There is some controversy over a NARAL advertisement, which I do not think is airing in my area (anyhow, I have yet to see it), against the nomination of John Roberts. The advertisement concerns Roberts' advocating the first Bush Administration's position in a case known as Bray v. Alexandria. A bit of background not always provided (including by an airheaded Al Franken refutation of the ad, which he did not see or apparently fully understand, and Eugene Volokh's coverage of the debate) by critics, since I myself recall the media coverage of the events.
A federal judge issued an injunction in response to a summer of violent protests at clinics in Wichita, Kansas, protests by nationally based anti-abortion groups that he recognized overwhelmed local police resources. The injunction grew from a Reconstruction law that gave the federal courts such power to deal with private groups who interfered with the federal constitutional rights of others, especially when such civil rights was invaded for racial or some other class-based reason. Early cases interpreted this too narrowly, in effect letting private terrorist level violence continue, while states did nothing (on their own volition or because they had inferior resources). The states had the power and responsibility to safeguard local citizens, but wink wink, they tended not to do so in certain cases.
It was not the Supreme Court's finest hour. "But in Bray , Roberts wanted to continue a century of crabbed, limited understanding of those Reconstruction statutes and limit them to race-based violence, even though nowhere in the Reconstruction statutes was the federal power to restrict private violence limited to race-based violence." Again, reliance was to be left to state officials, even if federal constitutional rights were at stake, and either by inaction or lack of resources, they did not adequately handle the situation. Michael Bray, a defendant in the case, had been convicted several years earlier for his role in bombing abortion clinics. Quite arguably, the federal judge had the authority to act as it did.
The Supreme Court agreed with Roberts that the judge did not. The Supreme Court did not really vote "6-3" as an article by Linda Greenhouse in the NYT [and Factcheck.org's ad rebuttal] notes -- Justice Souter dissented in part, holding the defendants should have the chance to defend the injunction on a separate ground. Likewise, as importantly, Justice O'Connor dissented, in particular, noting since women have abortions, the injunction was "class based." Justice Stevens also dissented, underlining the national threat that was being targeted as well as noting the freedom of travel was also threatened.
John Roberts, again generally as an advocate (uh huh), supported a more narrow view of national power. The ad tied him with the protestors, thus some of the ire of the opposition -- poor Roberts defended a statutory construction of a law and misguided liberal advocates blamed him for anti-abortion related violence. You know, they just don't understand the limited role of the president's lawyers, and the judiciary as a whole. But, this is a bit too fast and loose as well. The law has consequences. Advocacy of reduced federal power, even when the alternative might threaten constitutional rights and overwhelm local forces, does as well.
Yes, the ad should suggest there is some degree of separation between Roberts and protestors. But, that sort of advocacy also traditionally elides certain nuances -- thirty second spots does not supply much room for analysis and footnote sort caveats. Advocacy for and against nominees has some degree of simplification, and it is fair to suggest some wariness of this situation. Nonetheless, the ad has more than a kernel of truth -- it points to the real world effects of the law, effects that do factor in its analysis.
[This is the sort of "support" the ad spoke of ... it did not mean (as few viewers would think) that Roberts somehow supported the violence itself. But, the federal intervention (which was not necessary -- the justice department was not involved or anything) did help "Bray." Federal inaction does as well, which is why a federal law was passed to protect clinics. Reality still holds true, does it not?]
Denial of fundamental truths resulted in the wrongful gutting of the Reconstruction law involved once before. Roberts helped promote a somewhat lesser gutting of the terms, one that furthered the remarkable continuance of citation of 19th Century precedents that should be dead and buried by now. And, he was selected in part because that reflects his general legal philosophy. On that point, the ad was correct.