Here is an interesting bit about Supreme Court nominee Roberts:
Supreme Court nominee John G. Roberts Jr. worked behind the scenes for gay rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people from discrimination because of their sexual orientation.
Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay rights activists as part of his law firm's pro bono work. He did not write the legal briefs or argue the case before the high court, but he was instrumental in reviewing filings and preparing oral arguments, according to several lawyers intimately involved in the case.
Gay rights activists at the time described the court's 6-3 ruling as the movement's most important legal victory. The dissenting justices were those to whom Roberts is frequently likened for their conservative ideology: Chief Justice William H. Rehnquist, Antonin Scalia and Clarence Thomas.
Roberts' work on behalf of gay rights activists, whose cause is anathema to many conservatives, appears to illustrate his allegiance to the credo of the legal profession: to zealously represent the interests of the client, whoever it might be.
There is no other record of Roberts being involved in gay rights cases that would suggest his position on such issues. He has stressed, however, that a client's views are not necessarily shared by the lawyer who argues on his or her behalf.
The lawyer who asked for Roberts' help on the case, Walter A. Smith Jr., then head of the pro bono department at Hogan & Hartson, said Roberts didn't hesitate. "He said, 'Let's do it.' And it's illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job."
Roberts did not mention his work on the case in his 67-page response to a Senate Judiciary Committee questionnaire, released Tuesday. The committee asked for "specific instances" in which he had performed pro bono work, how he had fulfilled those responsibilities, and the amount of time he had devoted to them.
Smith said the omission was probably just an oversight because Roberts was not the chief litigator in Romer vs. Evans, which struck down a voter-approved 1992 Colorado initiative that would have allowed employers and landlords to exclude gays from jobs and housing.
"John probably didn't recall [the case] because he didn't play as large a role in it as he did in others," Smith said Wednesday. "I'm sure John has a record somewhere of every case he ever argued, and Romer he did not argue. So he probably would have remembered it less."
Jean Dubofsky, lead lawyer for the gay rights activists and a former Colorado Supreme Court justice, said that when she came to Washington to prepare for the U.S. Supreme Court presentation, she immediately was referred to Roberts.
"Everybody said Roberts was one of the people I should talk to," Dubofsky said. "He has a better idea on how to make an effective argument to a court that is pretty conservative and hasn't been very receptive to gay rights."
She said he gave her advice in two areas that were "absolutely crucial."
"He said you have to be able to count and know where your votes are coming from. And the other was that you absolutely have to be on top of why and where and how the state court had ruled in this case," Dubofsky said.
She said Roberts served on a moot court panel as she prepared for oral arguments, with Roberts taking the role of a Scalia-like justice to pepper her with tough questions.
When Dubofsky appeared before the justices, Scalia did indeed demand specific legal citations from the lower-court ruling. "I had it right there at my fingertips," she said.
"John Roberts … was just terrifically helpful in meeting with me and spending some time on the issue," she said. "He seemed to be very fair-minded and very astute."
Dubofsky said Roberts helped her form the argument that the initiative violated the "equal protections" clause of the Constitution.
The most amusing thing for me about this tidbit is that he helped out with a Constitutional argument I don't particularly agree with and is a conservative lawyer helping out what is not currently thought of as a particularly conservative cause (a cause I am rather attached to).
The NY Times did an editorial faulting Roberts for forgeting his involvement in the Federalist Society,a secret den of rogues if ever there was one. Let's see if they have anything to say on Robert's forgeting his work on Romer V Evans. An unfortunate aspect of the case is that a democratically voted referendum was overturned, a reminder to the sans culottes that they can only go so far and to remember their place,Jefferson and Mill be dammed.
Posted by: johnt | August 05, 2005 at 09:08 AM
Everything I've read about this says, it is not evidence about Roberts' personal convictions, just his lawyerly dedication to serving the client's interests. But wouldn't a case taken on pro bono be more indicative of the lawyer's personal convictions? Or does the fact that it was his firm that took the case rather than him, negate that idea? IAN by any stretch AL. When your firm takes a case on pro bono does that make it your case?
Posted by: Jeremy Osner | August 05, 2005 at 09:34 AM
I think when you're rooting around the scraps taking a single case or two to get some feeling of someone's philosophy, then you can't possibly know enough about the person to allow them to sit on the highest court in our land - for life.
And I think that's precisely the way the administration wants it.
Which should scare everyone - left and right.
Posted by: Hal | August 05, 2005 at 10:08 AM
I'm sorry, I just don't scare that easily.
What is it that you want, Hal, to keep you from being scared?
Posted by: Slartibartfast | August 05, 2005 at 10:20 AM
You know, people seem to think that the Bush administration has some sort of inside information reflecting Roberts' judicial philosophy. I think we can see from Souter, Kennedy, Stevens, Warren, etc. that Presidents do not have some sort of searing insight into how someone they appoint to the court will rule down the road.
OT - did anyone see the Medium Lobster's latest on fafblog? Could be the best thing it's ever written.
Posted by: Ugh | August 05, 2005 at 10:23 AM
Break me a give. He argued (in house) against the Voting Rights Act, as well. He's going to be bad for civil rights, but he's going through anyway.
Posted by: SomeCallMeTim | August 05, 2005 at 10:54 AM
"You know, people seem to think that the Bush administration has some sort of inside information reflecting Roberts' judicial philosophy."
It's likely that, on abortion at least, some level of comfort for the Adminstration was provded by Roberts' wife.
Posted by: Dantheman | August 05, 2005 at 11:04 AM
When your firm takes a case on pro bono does that make it your case?
Sure it does, in a sense. I find this story completely unextraordinary. Anyone at that firm with any SC case would have been smart to go to Roberts for a read through and some advice. And who could possibly have been better for a moot? It doesn't say anything at all about his personal views.
The great thing about practicing law in a larger firm is that you can bounce ideas around with people who know more about some substantive or procedural point than you do.
I've long said that mooting a colleague's appellate argument is the second best job in the law: you get to really drill them, ask all kinds of inapposite hypotheticals, be unreasonable and rude. The best job is playing red-team preparing senior officers of the client for deposition, that is, you try to get them to give away their case with 5 leading questions.
Posted by: CharleyCarp | August 05, 2005 at 12:13 PM
Slarti: I won't presume to speak for Hal, but what I'd want to see, to feel there was enough basis for genuine exercise of the advise and consent function, is all of Roberts' memos and arguments while the U.S. people were his clients. I.e., all the documents the Democratic members of the Judiciary Committee are asking for.
Posted by: Nell | August 05, 2005 at 12:21 PM
johnt--An unfortunate aspect of the case is that a democratically voted referendum was overturned, a reminder to the sans culottes that they can only go so far and to remember their place,Jefferson and Mill be dammed.
Amendment 2 was indeed a democratically voted referendum, which only goes to show that the majority of Colorado voters can be convinced that a positive statement of "equal rights" (that gays are entitled to the same protections as everyone else) is actually a statement of privilege and that legislation which explicitly denies them equal rights is necessary to balance that. The wording of the ballot initiative was unclear at best and the supporters of Amendment 2 flat out lied to the public about what it actually did, selling it as a protection of private property rights.
And I'm not sure why you invoke Mill for support in this one, since the arguments in On Liberty lend no support to any sort of pseudo-populist majoritarian bigotry like Amendment 2. Mill explicitly supported pluralism and preservation of maximum rights for minorities and those who dissented from the majority way of life. He thought that minorities were essential to the vitality of a society. Amendment 2 acted directly against that principle.
So, at least on a broad level, it is hard to see this as some sort of serious blow to democratic principles in anything but the most narrowly majoritarian sense. I leave it to the lawyers to argue over what the ruling does to legal precedent.
Posted by: nous_athanatos | August 05, 2005 at 12:27 PM
I like Josh Marshall's formulation:
whatever the Administration has access to in nominating him, the Senate should have access to in confirming him.
Posted by: Tad Brennan | August 05, 2005 at 12:28 PM
Do you expect that those things will be an absolute predictor of Roberts' rulings as a SC justice? Furthermore, do you believe that asking for all of those things is consistent with the advise and consent exercised on previous SC nominees? Or was perhaps the public record and the Q&A process (during which, I note, other SC justices declined to answer certain questions of the how-would-you-rule variety) good enough?
I really don't know. Why don't you tell me?
Posted by: Slartibartfast | August 05, 2005 at 01:01 PM
Slarti, Hal expressed an alarm I share at the very meager amount of information about Roberts that the nominee and administration are so far willing to make available. You asked (in that mocking tone that's gotten pretty tiresome) what information about Roberts it would take for Hal "not to be scared." I answered, speaking for myself.
Apparently, participating at all in this thread opens a person up to your further hectoring. Fair enough, but this will be my last comment for a good while.
My answers in order are: no, yes, and no -- not when someone up for a supreme judicial position he could hold for thirty years has only been a judge a short while and when documents relevant to his legal thinking exist but are being withheld.
Posted by: Nell | August 05, 2005 at 01:43 PM
The best part of this is watching the "outliers" on the left and right try to figure out how to spin this to their advantage or their opponents' disadvantage.
Right now they don't seem to know what to spin, although I'm sure that'll change soon enough.
Posted by: Bobzilla | August 05, 2005 at 01:48 PM
I agree with Tad, and Marshall, that the Senate ought to have access to the same information the White House has.
More broadly, I disagree with those who would restrict questioning and information, or suggest that there is a large set of off-limits matters. The plain fact is that we are talking about giving Roberts one of the most powerful jobs in the country - one he will likely hold for 30 years or more. Shouldn't the bias be towards allowing questions rather than prohibiting them?
Posted by: bernard Yomtov | August 05, 2005 at 01:58 PM
Great, bernard. You know, I don't have nearly as much of an issue with information as I do with there being, apparently, a new standard emplaced.
Nell, no mocking was intended or, actually, put into words. If you're taking my sincere request for your opinion as mockery, well, know that it's all happening on your end of the keyboard.
Posted by: Slartibartfast | August 05, 2005 at 02:54 PM
An unfortunate aspect of the case is that a democratically voted referendum was overturned, a reminder to the sans culottes that they can only go so far and to remember their place,Jefferson and Mill be dammed.
Yep, just like in Brown vs. Board when a democratically enacted school segregation scheme was overturned by those robed tyrants. Darn shame that was. If the people vote to ignore the 14th amendment, who are these unelected elitists to tell them they can't?
Posted by: Biff | August 05, 2005 at 02:58 PM
"Great, bernard." Hahahahaha.
Posted by: Phil | August 05, 2005 at 03:06 PM
"Great, bernard." Hahahahaha.
Er... am I missing something, or are you confusing Great Danes and Saint Bernards?
Posted by: kenB | August 05, 2005 at 03:29 PM
Yes. Yes, I am. Um . . . look, over there!
Vanishes in a puff of smoke.
Posted by: Phil | August 05, 2005 at 03:32 PM
I don't have nearly as much of an issue with information as I do with there being, apparently, a new standard emplaced.
Perhaps it's worth asking whether White House practices have changed. If so, then it's hardly fair to criticize the Senate for changing its practices as well.
I'm no scholar of these matters. Still, it does seem to me that the process of selecting judges has become more politicized recently, so it may be that changing standards, if they are indeed changing, are not restricted to the Senate's role in the process.
Posted by: bernard Yomtov | August 05, 2005 at 04:30 PM
If you're taking my sincere request for your opinion as mockery, well, know that it's all happening on your end of the keyboard.
If it was genuinely intended as sincere, can I suggest rephrasing the question?
Posted by: Anarch | August 05, 2005 at 04:37 PM
Who cares if we're changing procedures? The worst reason for doing something is because we did it yesterday. Is it useful, and are we barred from doing it? Respecting the past comes well after those questions.
Posted by: SomeCallMeTim | August 05, 2005 at 05:13 PM
Smoking gun:
"Jean Dubofsky, lead lawyer for the gay rights activists and a former Colorado Supreme Court justice, said that when she came to Washington to prepare for the U.S. Supreme Court presentation, she immediately was referred to Roberts.
"Everybody said Roberts was one of the people I should talk to," Dubofsky said. "He has a better idea on how to make an effective argument to a court that is pretty conservative and hasn't been very receptive to gay rights.""
Key words "immediately" and "everybody". The Right can spin it how they want but it seems to be the fact that when you come to DC needing to argue a gay rights case a number of people right off the top of their heads said "See John".
In his public persona this was a very conservative down the line Reagan guy. Why would people even dream he would be willing to take this case on at all, and still less think so "immediately"?
I don't care, but certainly wingnuts do. My personal opinion is that Roberts is probably as least evil of the possible choices out there. But you know and I know that he is a lock to overturn Roe v Wade. There has been a lot of in-jokes around the Left Blogosphere about the Guckert/Mehlman/Rove nexus but little willingness to take the next step. Perhaps it is time to let our liberal squeamishness take a back seat to our committment to womens rights.
Posted by: Bruce Webb | August 06, 2005 at 08:51 AM
BTW it kinds of kills the "he was just dragged in from the side" "he was just doing what his boss ordered" defenses. Clearly he was more central than that.
Posted by: Bruce Webb | August 06, 2005 at 08:54 AM
of course, if he has a low-profile soft spot for gay rights, wouldn't it be in the interests of those who support such things to not feed this kind of ammo to those who oppose them? rather, let those who oppose gay rights keep right on believing they're getting someone who shares their views... ?
Posted by: cleek | August 06, 2005 at 10:02 AM
White House Stonewalls on Roberts
Posted by: bob mcmanus | August 06, 2005 at 03:16 PM
I'm not sure how much more direct a disavowal of positive knowledge and request for information could possibly be, Anarch. But for you, I'll try to strain for more clarity.
This may take a while.
But, whatever.
Posted by: Slartibartfast | August 08, 2005 at 09:20 AM