Glimmers of hope?
According to news reports over the past couple days, John Roberts was involved in several “liberal” cases during his tenure at Hogan & Hartson. He defended a provision in the Hawaiian constitution that allowed only descendants of people inhabiting the Hawaiian islands in 1778 to vote in elections for the trustees of the Office of Hawaiian Affairs. (Justices Stevens and Ginsburg were the only ones who embraced Roberts’ position.) He argued that a state agency’s moratorium on development around Lake Tahoe did not amount to a taking, and that the aggrieved landowners were therefore not entitled to compensation. (The Court’s liberal bloc agreed with Roberts, while Justices Rehnquist, Scalia, and Thomas dissented.) He did substantial pro bono work on behalf of homeless Washington residents and convicted murderers—plaintiffs that legal conservatives do not typically rush to represent.
Most notably, Roberts also advised the plaintiffs’ lawyers in Romer v. Evans, the landmark 1996 gay rights case. In Romer, a divided Court struck down a Colorado constitutional amendment that banned local governments from passing laws protecting homosexuals or entitling them to make discrimination claims. In a furious dissent, Justice Scalia—joined by Justices Rehnquist and Thomas—accused the majority of “tak[ing] sides in the culture wars” and drafting an opinion that “has no foundation in American constitutional law.” The extent of Roberts’ involvement in the litigation is not entirely clear, but he appears to have reviewed the plaintiffs’ briefs and prepared their lawyer, Jean Dubofsky, for oral argument before the Court. The Seattle Times described his role as “instrumental,” and Walter Smith, a former colleague of Roberts at Hogan & Hartson, cited Roberts’ willingness to work on cases even when “not all his conservative brethren felt that way.”
So what does this all mean?
Without having Roberts tell us himself—as perhaps he will in his confirmation hearings—there is no way to know for sure. But we can still venture some guesses.
First, it might mean that Roberts is more liberal (or at least moderate) than has commonly been supposed. True, it is a mistake to equate lawyers’ personal beliefs with the positions that they argue in cases. But Roberts’ choice of pro bono projects—the context in which lawyers are most free to pick their clients and causes—is nevertheless revealing. He didn’t have to represent death row inmates and the homeless of Washington. And there was neither money nor glory in his work in the Romer litigation; the case was pro bono, and another lawyer was responsible for the Supreme Court oral argument.
Second, it might mean that Roberts is exceptionally good at divorcing his personal positions from his legal craftsmanship. It’s possible that Roberts in fact sympathized with the legal positions of Colorado and the would-be property developers of Lake Tahoe, but was able to ignore his own beliefs and argue persuasively for the other side. Media reports of Roberts’ deep reverence for the law lend support to this hypothesis.
Finally, Roberts’ involvement in liberal cases might mean that he is one savvy operator. On this (admittedly cynical) account, Roberts might have realized after his early 1990s stint in the Solicitor General’s Office that his record to date was too conservative. Having already had his nomination to the D.C. Circuit Court of Appeals blocked once, on largely ideological grounds, he might have wanted to ensure that it would never be blocked again. Accordingly, he might have taken on a few liberal cases in order to moderate his public image—while still maintaining the more doctrinaire positions he espoused as a young Turk in the Reagan White House.
So which of these theories is most plausible? I think the uniformly positive comments about Roberts’ character, from liberals and conservatives alike, rule out hypothesis #3. And it’s highly unlikely that a Rehnquist clerk who spent the first decade of his career in the Reagan White House and Bush Department of Justice is really a closet liberal, which lets us rule out hypothesis #1. What we’re left with then is hypothesis #2—that Roberts is a political conservative who is very good at arguing cases without reference to his own beliefs. As long as he brings the same political neutrality and careful legal reasoning to the Supreme Court, there may be little for progressives to fear in a Roberts Justiceship. He may be no Bill Brennan, but he should be equally unlikely to turn into another Nino Scalia.
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I think it means:
- Roberts is a lawyer who understands the ethical obligation of an attorney to represent his or her client's interests, not his own.
- Roberts was seen by his partners at Hogan as a valuable resource. Roberts' stock-in-trade in private practice was as an appellate/ Supreme Court litigator. I doubt that many, if any, of his clients relied upon his day-to-day advice to advance their business goals. Rather, as in the Romer and Toyota cases, they came to him in need of his highly specialized background before The Nine.
- Roberts' "pro bono" representation is a marketing device. There aren't enough paying cases before the Supreme Court upon which any one lawyer can build a career. You need to get your name out there as an "adviser," as well as counsel of record, from time to time in order to land the big ones. What lawyer Roberts was doing was as much business development as charity. Not that there's anything wrong with that.
I think the breadth of clients and the trust they reposed are tremendous compliments to John Roberts, the lawyer, and to Hogan Harston, the law firm. I don't think they tell us anything more about John Roberts, the putative Associate Justice.August 6, 2005 7:52 AM | Reply | Permalink
There doesn't seem to many things that all sides may agree on related to Roberts and his positions. One thing that seems clear: he is a qualified and well respected attorney, with clear credentials for the S.Ct.
This is clearly a good thing if he is confirmed - because at his age it would be a nightmare if he weren't competent - in other words I give you Clarence Thomas.
This could also be clearly bad if he turns out to be another Scalia (another clearly brilliant legal scholar - eminently qualified to serve but an ideologial disaster).
It is most distressing that the DOJ will not disclose his work as ASG. I would very much like to see those documents. They are not, however, a panacea to the problem of what Roberts believes. These documents will give an insight into how Roberts thinks through a case and his impressions of the facts of a particular case. They won't give a window on his beliefs though. The notes in an attorney's file (and I am an attorney) are so case specific and related to the facts and law related to that case that any real determination of an attorney's personal beliefs would be impossible. Moreover, it would be dangerous to make these determinations from these documents - in other words you can't be sure.
In the end, we can't really know what he believes. He is certainly not my first choice for the nomination (my personal favorite justice was William Brennan)
One thing that we can take heart in though is this: it seems that he has reverance for the law - that he is exceptionally bright (there are no dumb S.Ct. clerks) and qualified - and may very well be truly independent in his beliefs (though they will certainly be more conservative than I would like).
Remember: you never know what a Justice will turn out to be - I give you Byron White (more conservative than most would have thought) or Harry Blackmun, Douglas Souter and the ultimate Earl Warren.
August 6, 2005 9:30 AM | Reply | Permalink
All I think it means is that Roberts is at the top of his field as a lawyer. He is able to represent his clients at the highest level of professionalism. I don't think it gives insight to how Roberts would be as a judge. As a lawyer Roberts looks at the existing law and Supreme Court rulings in place to make the case for his client. As a judge he will be asked to review the law in terms of it's constitutionality vis-a-vis a case at hand, which is a completely different process and mindset...
August 6, 2005 10:38 AM | Reply | Permalink
I don't think Roberts' pro bono work is a marketing device, for two reasons:
1. I'm reasonably sure he's just a guy, not a Sith Lord. Considering Bush wanted a Scalia clone for his nominee, I think it's safe to say the WH knew nothing about this. Which means, if Roberts planned it, he had to have the foresight to create a liberal trump card for himself years in advance, for just such a contingency, and to keep it very, very quiet the whole time.
2. This information probably does more to hurt Roberts' chance than help. The administration seems to think (probably rightly so) that short of a bombshell, they can push through Roberts easily, there just isn't anything solid enough for the Dems to attack him on. But pro bono work in aid of the dreaded homosexual agenda? That could erode his conservative support very quickly. If anything, I think he'd be pretty tempted to try to bury this news.
Personally, I'm hoping he's secretly gay (is it a bad thing to hope someone's marriage is a sham?). Wouldn't be the first time. Hell, here in California,it's getting to the point where the traditional retirement for Republican politicians is coming out of the closet or being indicted for bribery.
And, frankly, it would make some truly exquisite political theater (and a rare bit of good news) if the first ever gay Supreme Court Justice was put there by Dubya, completely by accident.
August 6, 2005 1:42 PM | Reply | Permalink
I didn't mean to say he was marketing himself for the Supreme Court job. I meant to say that Roberts--and his firm--used his "pro bono" work to market their appellate litigation practice.
Not for love. Just for money.
August 6, 2005 1:56 PM | Reply | Permalink
August 6, 2005 6:13 PM | Reply | Permalink
Nope, no glimmer.
Roberts isn't there to decide on gay or even abortion issues. He's there because he "can find nowhere in the constitution a 'right to privacy.'"
Chenny's daughter is gay and he's ok with that. I'm sure that GW is ok with gays also. Neither of them would make a big deal about it in public of course. Gotta feed the freepers you know.
No, Roberts is there to secure the neo-cons' access to power.
August 6, 2005 6:16 PM | Reply | Permalink
No one seems to have asked a pretty basic question: did Hogan & Hartson have any openly gay associates (or non-openly gay partners) at the time? Anyone who might have pulled him aside and said "look, just give us a few hours help on this by showing us what the Court is likely to say if we make these arguments"? A direct appeal of that sort would have been hard for a partner to rebuff if he wants to be a team player and not deflate the firm's esprit de corps. "Sorry, but I find your lifestyle offensive and don't want to do anything that would impede Colorado voters from being able to vote away your civil rights?" That could lead to some tense elevator rides.
So does his having done this work say much about his likely conduct on the Court? It says about as much as GWB evidently being affable with gay couples from his class at his Yale reuninon, or Reagan reportedly being non-judgmental about gay friends in the industry, or Cheney not disowning his daughter, or Rick Santorum standing by his gay man on his staff, says about their performance in office: i.e., pretty much nothing. High-placed conservatives make exceptions in being judgmental when it comes to personal friends -- always have, always will. Liberals tend to be a bit more "the personal is political" oriented. Maybe this is why Dick Morris veered so far right after his hooker escapade hit the airwaves; Karl Rove could tell Bush he was in NAMBLA and Bush would just wink and tell him to keep it under his hat.
August 6, 2005 11:55 PM | Reply | Permalink