01:00 AM EDT on Wednesday, July 27, 2005

IN A LENGTHY and laudatory July 21 New York Times article chronicling the background and professional experience of Judge John G. Roberts Jr., President Bush's nominee for the Supreme Court, the judge pridefully notes that he can argue either side of a disputed legal issue. This confidence from a seasoned advocate is neither surprising nor arrogant, as law libraries are filled with countless cases resulting from disagreements between and among lawyers and judges about which law is applicable to a particular case.

As statutes and constitutions are often marked by a lack of specificity, and thus allow for divergent interpretations by different judges, it is instructive to examine how Judge Roberts analyzed the Fourth Amendment declaration that people have a right "to be secure in their persons" and to be free from "unreasonable searches and seizures" when he was confronted with the claim of 12-year-old Ansche Hedgepeth that she had been unlawfully arrested and detained by undercover police officers in October of 2000.

Her crime? Eating food, specifically one French fry, at a Washington, D.C., subway stop, in contravention of a local ordinance.

For her gustatorial effrontery, police officers took her into custody, handcuffed her behind her back, searched her body and her backpack, removed her shoelaces, and then transported her in a windowless van to a facility for processing and fingerprinting. Throughout this ordeal, the child was sobbing. She was released to her distraught mother three hours later.

When Ansche's mother brought suit, the question presented to Judge Roberts and his colleagues on the U.S. Court of Appeals for the District of Columbia Circuit -- which legal commentators maintain is the second most powerful court in the country -- was whether Ansche's right to be free from unreasonable searches and seizures had been violated.

Judge Roberts noted the right and responsibility of courts to "inquire into the reasonableness of the manner in which an arrest is conducted," before he went on to rule that the police officers had done nothing unconstitutional in dragooning little Ansche.

We may fairly ask what Judge Roberts thought was reasonable about the scope and nature of the search and temporary incarceration of this child? Did he think that the girl was concealing contraband ketchup? Or an unpatriotic bottle of French wine to quaff with her fried spud? Perhaps there was something about her and her overt display of a French fry that led the officers to conclude that she had a hand grenade in her knapsack.

This outrageous decision is instructive. First, it teaches that a Harvard law degree and a professional lifetime representing corporate clients and the U.S. government are no guarantee that one comprehends the Bill of Rights. Second, Judge Roberts will be as ill-equipped as the colleagues he will shortly join on the Supreme Court to deal with questions of criminal law.

For the past 25 years, no member of the court -- including the recently retired Justice Sandra Day O'Connor -- ever defended a person accused of a felony. This dearth of experience is significant because annually 25 percent of the 85 or so cases that result in full Supreme Court opinions involve criminal questions. Figures compiled each year by the Harvard Law Review show that approximately 2 percent of the court's work is in the area of administrative and governmental regulation. Yet Judge Roberts will join four other justices who have backgrounds in corporate law and economic regulation: Chief Justice Rehnquist and Justices Stevens, Scalia and Breyer.

By defending people accused of felonies, a lawyer gains an understanding of the practical and dynamic application of constitutional principles in a trial setting. The lawyer also rubs shoulders with the impoverished underclass of society, who, after all, are the principal occupants of the defendant's chair in courtrooms across this country.

There may be prodigies in chess or classical music, but in the law there are none. Experience remains the best teacher.

Because the lawyers for federal bureaucracies, political counselors, and corporate lawyers called to serve on the Supreme Court have no experience in criminal law, the consequences are often disastrous for the most defenseless in our society.

The current court has sanctioned race-based pretext stops of cars, and allowed racist practices into our criminal-justice system, including cases involving capital punishment. And it's only recently that the court has determined that retarded or youthful perpetrators should be spared the death penalty. The Supreme Court has also refused to require trial judges to explain to juries that proof beyond a reasonable doubt means (according to precedent) "proof to a near certainty."

The Democrats, of course, have neither the numbers nor the political will to stop Judge Roberts from going onto the Supreme Court. But if they can awaken themselves from their usual craven slumber, they would be wise to use his confirmation hearing to inform the judge that, whatever else Americans may disagree upon, our values and our respect for the Constitution do not envision little girls' being handcuffed and humiliated for eating a French fry in a subway station.

Stephen J. Fortunato Jr. is an associate justice of the Rhode Island Superior Court.