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Smearing John Roberts

SINCE THE moment President Bush nominated John Roberts to the Supreme Court, the abortion rights group has been spoiling for a fight. Declining even the pretense of a careful exploration of Roberts and his record, NARAL instantly urged its supporters to oppose him.

For the most part, the rest of the political community has responded in more measured fashion as the Senate has begun evaluating a judge who is obviously quite conservative but who so far doesn't appear to be the sort of radical right-winger liberals had feared Bush would nominate.

Indeed, some of the most vocal objections to Roberts have come from rabid conservatives like Ann Coulter and Eugene Delgaudio, head of Public Advocate of the United States. Delgaudio, for example, has tried to rally opposition to Roberts because he offered pro bono advice to gay rights advocates, advice credited with helping them win an important antidiscrimination victory in 1996.

This week NARAL took its opposition further, unveiling a television ad that smears Roberts as a legal and philosophical ally of abortion clinic bombers because of his arguments in a 1991 Supreme Court case.

NARAL's ad begins with images of a bombed abortion clinic in Birmingham, Ala., and features comments from Emily Lyons, a clinic worker badly injured in the 1998 bombing. The narrator then says that ''Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber." The ad concludes that Roberts must be opposed because ''America can't afford a justice whose ideology leads him to excuse violence against other Americans."

Despite the insidious impression the ad creates, the Supreme Court case in question, Bray v. Alexandria Women's Health Clinic, was not about abortion clinic bombings or the prosecution of clinic bombers. Indeed, the bombing featured in the ad occurred more than five years after that case was decided.

Rather, the issue before the Supreme Court back then was over legal tactics to prevent the blockades being staged at abortion clinics. (The only real nod to that reality is this text -- ''Roberts filed court brief supporting clinic protesters" -- which appears on screen for three seconds or so during the 30-second spot.)

Then a deputy solicitor general, Roberts argued that an 1871 law targeting the Ku Klux Klan was not a proper legal basis for enjoining those blockades because the blockades did not amount to a ''discriminatory deprivation of rights." The Supreme Court agreed, ruling six to three that the law did not apply., the nonpartisan project of the University of Pennsylvania's Annenberg Public Policy Center, has a terse verdict about NARAL's effort: ''The ad is false."

The well-regarded nonpartisan watchdog writes: ''In words and images, the ad conveys the idea that Roberts took a legal position excusing bombing of abortion clinics, which is false. To the contrary, during the Reagan administration when he was associate counsel to the president, Roberts drafted a memo saying abortion clinic bombers 'should be prosecuted to the full extent of the law.' " Further, in his arguments in Bray, Roberts ''went out of his way to say that the blockaders were trespassing, which is a violation of state law."

If NARAL wants to oppose Roberts because it fears he may become part of an antiabortion majority, that is its prerogative, though it's highly unrealistic for liberals to expect that they are going to get a nominee who explicitly commits to supporting abortions rights. Further, if NARAL wants to assert that Roberts's arguments back then helped deprive abortion clinics of an important legal tool against the protests and blockades of the time, that would be accurate.

But it is fundamentally wrong to portray Roberts as man who has excused violence against other Americans or who somehow offered legal support in a clinic bombing case. And that's the impression this ad obviously tries to create. calls it guilt by association. Character assassination might be more apt.

That's something partisans on both sides too often excuse in members of their own party or in their ideological allies. But just as it was wrong for Swift Boat Veterans for Truth to wage a campaign of character assassination against Democratic nominee John Kerry last year, so too it is wrong for NARAL to smear John Roberts as someone who somehow supports, condones, or excuses violent extremists.

And it's important for NARAL to hear that from its own allies.

Scot Lehigh's e-mail address is

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