Debra, Roberts looks like a pretty square shooter. Why not give him the benefit of the doubt for now?
From the NYT:
July 21, 2005
Court Nominee's Life Is Rooted in Faith and Respect for Law
By TODD S. PURDUM, JODI WILGOREN and PAM BELLUCK
This article was reported and written by Todd S. Purdum, Jodi Wilgoren and Pam Belluck.
WASHINGTON, July 20 - He is the son of a company man, and he has lived a loyalist's life. His teachers remember him as the brightest of boys, but his classmates say he never lorded it over them. He was always conservative, but not doctrinaire. He was raised and remains a practicing Roman Catholic who declines, friends say, to wear his faith on his sleeve.
And like his first judicial mentor, Henry J. Friendly of the federal appeals court in New York, John G. Roberts is an erudite, Harvard-trained, Republican corporate-lawyer-turned-judge, with a punctilious, pragmatic view of the law.
"I do not have an all-encompassing approach to constitutional interpretation; the appropriate approach depends to some degree on the specific provision at issue," Judge Roberts wrote in response to a written question during his 2003 confirmation to the federal appeals court in Washington. "Some provisions of the Constitution provide considerable guidance on how they should be construed; others are less precise.
"I would not hew to a particular 'school' of interpretation," he added, "but would follow the approach or approaches that seemed most suited in the particular case to correctly discerning the meaning of the provision at issue."
From his childhood as the son of a plant manager for Bethlehem Steel and a standout student through his career as a judge and lawyer for the government and private corporations, friends, colleagues and teachers say Judge Roberts has taken life one step - and one case - at a time.
Laurence H. Tribe, a liberal professor of constitutional law at Harvard, remembers Judge Roberts as a student there and has kept in touch with him over the years. He does not recall Judge Roberts as a political conservative when he studied there.
"He's conservative in manner and conservative in approach," Mr. Tribe said. "He's a person who is cautious and careful, that's true. But he is also someone quite deeply immersed in the law, and he loves it. He believes in it as a discipline and pursues it in principle and not by way of politics."
In his 2003 written testimony, Judge Roberts cited Justices Oliver Wendell Holmes, Louis D. Brandeis, Felix Frankfurter, Robert H. Jackson and John Marshall among the Supreme Court judges he most admired. One was a Republican, three were Democrats and one was a Federalist, but all were deeply influential in their day, and all would make any law professor's short list of all-time greats.
Judge Roberts's friends say his approach to the rest of his life is similarly embracing.
"When I look at the people who were his friends, and who are his friends, there's not a political component to it that I can detect," said Charles E. Davidow, another law school classmate who roomed with him when they were both clerking, for separate judges, in New York.
"It's not as if his friends are all conservative, or all liberal, or all anything else. His friends are his friends, and he's not the kind of personality where conversations with him tend to turn political."
Judge Roberts is indisputably a Republican: He advised Gov. Jeb Bush of Florida during the 2000 presidential vote recount; gave $1,000 to George W. Bush that year; and contributed about $2,700 to various Republican candidates over the years. But he has given more - almost $7,500 - to his law firm's political action committee, which supports Democrats and Republicans in roughly equal measure.
In a law school class that included one current senator, Russell D. Feingold, a Wisconsin Democrat, and one former one, Spencer Abraham, a Republican from Michigan; at least two congressmen; and countless managing partners of the nation's leading law firms, Judge Roberts always stood out, but not apart. Though he earned more than $1 million a year by the time he left the blue-chip Washington law firm of Hogan & Hartson to go on the bench two years ago, he often ate lunch in the firm cafeteria, chatting with co-workers and junior colleagues.
"There are partners who spend that kind of time, and there are partners who don't," said Patricia A. Brannan, a partner at Hogan. "He always made time."
Paul Mogin was a year behind Judge Roberts at Harvard Law School and his roommate there for two years. He followed Judge Roberts as Judge Friendly's clerk on the Court of Appeals for the Second Circuit and chose him as the best man at his wedding.
"By temperament, he's not a flame-thrower, not somebody you'd expect to willingly or readily overrule a precedent," Mr. Mogin said. "He's somebody who has respect for institutions. I think institutions have been important to him in his life, like Harvard, the Catholic Church and the Supreme Court. He's not likely to be anybody to do anything too radical."
Early Thirst for Learning
As early as elementary school, John G. Roberts stood out as the smartest kid in class. He regularly scored 100's, took five years of Latin in four years of high school, had his essays read aloud as examples for his peers.
Dorothea Liddell, his eighth-grade math teacher at Notre Dame, a Catholic school in the small town of Long Beach, Ind., where Judge Roberts grew up, said she used young John as a barometer as she experimented with the unfamiliar curriculum known as New Math.
"If he understood the concept, I was good," Mrs. Liddell remembered Wednesday as she sat in one of the school's un-air-conditioned classrooms, reminiscing with several former students. "If not, teach it all over again."
Born in Buffalo, Judge Roberts arrived in Long Beach, a flag-bedecked town of 1,500 residents on the shore of Lake Michigan, around fourth grade with his parents when his father, John Sr., helped open the Bethlehem Steel mill in Burns Harbor, a half-hour's drive away. At first the family - John and his three sisters, Cathy, Peggy and Barbara - lived by the lake amid the summer cottages of wealthy families from Chicago, about 60 miles away. But in 1965, the family built a brown split-level house with five bedrooms on a quiet street a couple of blocks away.
Like other steel executives' children, John Roberts went to private school, first next door to his family's parish at Notre Dame, and then to an all-boys boarding school, La Lumiere, a bucolic retreat on a pond in nearby LaPorte.
Besides being an academic star, he was a scrappy athlete, a captain of the football team despite his mediocre play, and competed in wrestling and track. In a small school of about 125 students, John Roberts was also on the student council executive committee (he lost the race for senior class president to his best friend), the student activities committee, the editorial board of The Torch student newspaper and the drama club.
The school yearbook from 1972, his junior year, shows he played Peppermint Patty in the production of "You're A Good Man, Charlie Brown."
He impressed almost everyone. Lawrence Sullivan, his high school math teacher, recalled on Wednesday, "It became very, very clear and evident when he first came here that he was a person who was destined to do big things."
A Gift of Persuasion
Though Judge Roberts at first aspired to be a history professor - a former roommate said he chose Harvard over Amherst intending to combine undergraduate work with a Ph.D. - he showed early signs of the skills that would serve him so well as a litigator.
"The English teacher used to talk about his papers after he had written them because they were outrageous but very well crafted," remembered John Langley, an emergency room doctor in New Orleans who was a class below Judge Roberts at La Lumiere. "He could take an argument that was borderline absurd and argue for it so well that you were almost at the point of having to accept his stance even though it was intuitively obvious that it was absurd."
Few people remember him or his parents having much interest in political activity, though Mr. Sullivan said "he had a conservative bent," in contrast to the faculty at La Lumiere.
Asked how her son became a solid conservative, Rosemary Roberts said, "I don't know, only God will know," but she said her son's views are shared by other family members.
The elder Robertses now live in a golf-course community in Ellicott City, Md., near Baltimore, and she recalled: "We were very concerned about the news and everything. We have always been a family that was interested in things other than ourselves."
In his senior year, in David Kirkby's Morals class, John Roberts went beyond a simple book-report assignment to pore through a dense set of seven philosophy tomes, then proceeded to hold forth for several class periods while some of his classmates struggled to fill a few minutes. "If bells hadn't rung to end the class, he could probably be still talking now, 32 years later," Mr. Kirkby said, laughing, on Wednesday.
Tenacity was a hallmark on the football field too.
"He wasn't that big, he wasn't that fast, but he wasn't bashful about butting his head against guys three times his size," said Bob MacLaverty, who beat John Roberts in that student council election, but remained close enough friends that they stood at each other's weddings.
John Roberts and John Langley worked summers at the Burns Harbor mill - on the floor, not in offices, like their fathers.
"They were down-and-dirty jobs, but they paid well, and the kids had to learn how to take a riding from the regular employees who were not going to college," recalled Mr. Langley's mother, Joan.
Beth Linnen, a former classmate at Notre Dame elementary school, still remembers John Roberts's nerdy glasses and winning smile. "If you said to me, 'Who was the smartest kid in your grade-school class?' I would have said, 'John Roberts,' " Ms. Linnen said. "Some kids who are smart are sort of geeky, but he just got along with everyone."
Andy McKenna, who is now chairman of the Illinois Republican Party, was two years behind Judge Roberts at La Lumiere, yet well aware of his academic legend.
"When he got things wrong, people thought there might be something wrong with the teacher, not with him, because he was so off the charts," Mr. McKenna said on Wednesday. "Not many people could keep up with him."
Years at Harvard
The same was true at Harvard College, where Judge Roberts graduated summa cum laude in 1976, and Harvard Law School, which he entered that fall.
Richard Lazarus, a law school friend, tells the story of a mutual friend, a fellow student who "made the mistake of joining John's study group first year." After two weeks, the friend was miserable.
"He thought he may well have made a serious mistake because he wasn't good enough," said Mr. Lazarus, now a law professor at Georgetown University. "Then he started studying with some other people and he thought, 'Wait a minute - I'm not the problem.' It was because he was studying with John."
Judge Roberts, said Mr. Lazarus, "worked all the time and held himself to high, high standards. One day, John was worrying that he hadn't done well on an exam. I said 'John, I'll bet you $25 you got at least an A-minus on the exam.' He wouldn't take the bet. It shows you what he was like. The rest of us would have been perfectly happy with the A-minus."
By all accounts, during his Harvard years, Judge Roberts excelled academically but also stood out for his even-tempered nature and his ability to engage with people with many different viewpoints. Many of his law school classmates were aware that Judge Roberts was somewhat conservative in outlook, but, they say, he was not politically active.
"He was, I would say, conservative in the old-fashioned sense, not the new modern sense," said Bill Kayatta, a lifelong Democrat who served on the law review with Judge Roberts. "He had a sort of thoughtful respect for institutions, history, precedent, a willingness to consider change but not revolutionary. He believed in having some humility about one's ability to suddenly decree that those who came before you were wrong, but he was not a stick in the mud either."
Mr. Kayatta added: "John and I probably spent several hundred hours debating every issue known to humankind, coming from very different perspectives on many issues. He's the type of person you could debate any issue with, and you could sometimes change his mind and sometimes he would change yours. He was brilliant, but modest, the latter being unusual at Harvard Law School. He was someone who's just soft-spoken and brilliant, but yet very interested in what other people had to say."
Young Conservative
By the time Judge Roberts got to the law school, the Cambridge campus was no longer the radicalized haven of liberalism it had been during the Vietnam War era, several former students said.
Representative John Barrow, Democrat of Georgia and a law school classmate, recalls those years as "almost a happy time between the activism of the 60's and the hostile time of the 80's," when the faculty was deeply divided over the curriculum and legal studies. Judge Roberts's views did not much stand out.
"He was more conservative than others," Mr. Barrow said, "but to be honest, I can't remember having any political discussions."
Representative Brad Sherman, Democrat of California, who worked on Jimmy Carter's presidential campaign as a first-year student, did not know his classmate that well. "I couldn't tell you whether he inhaled or didn't," he said. "I didn't hang out with the smart kids."
Don deAmicis, another classmate who is now a partner at Ropes and Gray in Boston, said the law school of that era could not be described as "a conservative institution, but I don't think that those who were more conservative felt alienated by the institution."
Indeed, Stephen Galebach, now a lawyer in Andover, Mass., arrived at the law school after a stint in the Marines, described himself as a "Reaganite conservative" and said: "I fit quite naturally. It's not like I took guff from people. People were interested in interesting things about people."
Mr. Galebach recalled that he was more politically outspoken than Judge Roberts ever was on campus. "From our time in law review, it wasn't like John was a gung-ho conservative," he said. "He wasn't active. He wasn't a gung-ho liberal on liberal causes. He was always more focused more on the craftsmanship" of the law.
Mr. Galebach said the fact that Judge Roberts's position at the law review was managing editor "tells a lot about John." He added: "Managing editor is the one who just makes sure everything is done to a high level of quality. It's the ultimate position of not injecting your own views, but allowing other people to reach high levels of scholarship."
Judge Roberts himself wrote two "notes" for the review, one on the Constitution's contracts clause and the other on the takings clause, but mostly edited the work of professors and legal scholars who contributed.
A Mentor in New York
After graduation, Judge Roberts went to clerk for Judge Friendly, the former presiding judge of the appeals court in New York who by then was winding down his long career but was still widely regarded as the pre-eminent appeals court judge of his era. Judge Friendly, too, had graduated summa cum laude from Harvard and Harvard Law School, where he had studied under Justice Frankfurter before clerking for Justice Brandeis on the Supreme Court.
Working for Justice Brandeis, Judge Friendly had helped with his famous dissent in Olmstead v. United States, in which Justice Brandeis argued that the government had violated a bootlegger's constitutional rights by wiretapping his telephone. In ringing language that decades later would help form the basis for a string of privacy rights rulings by the court, Justice Brandeis argued that the framers had "conferred, as against the government, the right to be let alone - the most comprehensive of rights, and the right most valued by civilized men."
After work as a lawyer for Pan American World Airways, Judge Friendly was appointed to the federal bench by President Dwight D. Eisenhower and was sometimes frustrated by the liberal activism of the Supreme Court under Chief Justice Earl Warren. He was famous for writing his own opinions, which often found their way into casebooks, and asking his clerks not for written memos but for oral defenses of their ideas.
"He had a proper view of the limited role of judges," another former clerk, Robert Weiner, now a lawyer in Washington, said of Judge Friendly. "He had a guiding principle that when deciding a case, a judge should always think about how the ruling would be cited back at you in the next case. He wasn't going to vary his principles from case to case, just because he may have liked the facts differently. He often decided cases in ways he would have preferred not to."
Mr. Mogin said that Judge Friendly, who died in 1986, "had his favorite former clerks, and Roberts was always one of them."
Judge Roberts's next assignment was a clerkship for a more conservative judge, Chief Justice William H. Rehnquist, then an associate justice of the Supreme Court, before joining the Reagan administration as an aide to Attorney General William French Smith.
Mr. Lazarus, who roomed with Judge Roberts back then, said he was not apolitical. "During the 1980 presidential election, we were roommates and we had a presidential election party, and he had put an elephant on the TV and I put a donkey," Mr. Lazarus said.
But, he added, Judge Roberts "said to me a long time ago there was no case he had been on where he couldn't have done the other side."
In Washington
Judge Roberts later worked as an associate in the White House counsel's office in the Reagan administration before entering private practice at Hogan & Hartson in 1986, then returning to government service as principal deputy solicitor general in the first Bush administration, helping to argue its positions before the Supreme Court.
In both jobs, he took positions on behalf of clients that he has said should not necessarily be attributed to him, insisting in his confirmation hearing two years ago, "My practice has not been ideological in any sense. My clients and their positions are liberal and conservative across the board."
In private practice, he has represented some of the world's biggest automakers, the National Collegiate Athletic Association and the National Mining Association.
But it is his work in the solicitor general's office that has drawn some of the sharpest early criticism from the liberal advocacy groups that are scrutinizing his comparatively limited public record.
In 1991, he signed a brief asking the court to lower the wall of separation between church and state.
The government had asked the Supreme Court to discard an earlier test and overturn a lower court ruling that held a clergyman could not give an official address at a junior high school graduation in Providence, R.I. It asked the court to rule that "civic acknowledgments of religion in public life do not offend the establishment clause" of the Constitution "as long as they neither threaten the establishment of an official religion nor coerce participation in religious activities."
At the time, officials in the first Bush administration told reporters that the reason for intervening was a tactical decision to try to draw out Justice David H. Souter, then the court's newest member, and get him on the side of the administration, which was hoping eventually to change the approach to religion in public settings.
In the end, the court voted 5 to 4 against the administration and upheld the lower court's decision. Among those in the majority were Justice Souter and Justice Sandra Day O'Connor, whose seat Judge Roberts has been nominated to fill.
Barry W. Lynn, the executive director of Americans United for Separation of Church and State, said Wednesday that Judge Roberts's participation in the case makes him "unsuited for a seat on the U.S. Supreme Court." He said that if confirmed to the court, Judge Roberts would "open the door to majority rule on religious matters."
Friends of Judge Roberts and his wife, Jane Sullivan Roberts, a lawyer at Pillsbury Winthrop Shaw Pittman, say they share a strong faith. "They are deeply religious," said Fred F. Fielding, the former White House counsel for President Reagan, "but they don't wear it on their sleeves at all."
The couple are members of the Church of the Little Flower in Bethesda, Md., a Catholic congregation that includes about 1,500 families. Like many Washington-area churches, its members have included prominent political figures. Thomas O'Neill, the former speaker of the House known as Tip, as well as Edmund Muskie, the former United States senator, secretary of state and presidential candidate, once attended, said Gary R. Davies, a church deacon. More recently, L. Paul Bremer III, who served as the United States' administrator in Iraq, was a member.
The church, Mr. Davies said, is not particularly political, though it does organize two or so busloads of members each year to participate in an anti-abortion rally marking the Roe v. Wade decision. "I have never heard anyone talk about politics," Mr. Davies said. "It just does not belong."
Some who know Judge Roberts say he does not let his personal beliefs affect his legal views. "He's not going to allow political or theological interference with his opinions," said Mark Touhey, a partner in the Texas law firm of Vinson & Elkins.
Shannen W. Coffin, a friend of Judge Roberts and a former Justice Department lawyer, said: "John's faith is his faith, and his approach to the law is a separate issue. If it has any effect, it is in the sense of restraint, that he is not and the role of the judge is not to be the center of the universe. It stems from the sort of humility of a faithful person."
The Robertses frequently attend events at the College of the Holy Cross, in Worcester, Mass. Jane Roberts is a graduate of the school and has been a trustee for the last four years.
"They are devout Catholics," said the Rev. Michael C. McFarland, the college president. "They are not the kind of people who would be in your face," he added. Their religion "would affect their personal lives, but they are very professional in their work."
Mr. Coffin said that after the Robertses married nine years ago when they were both in their 40's, they tried to have children. After a several failed adoption efforts, he said, they "got lucky" with two children, Josephine and John, now 5 and 4.
In a sign of just how small the elite world of the Supreme Court bar and bench can be, the Robertses have attended Holy Cross events with Justice Clarence Thomas and his wife, Virginia, according to Father McFarland. Justice Thomas is also an alumnus of Holy Cross and a trustee.
"I know they know each other," said Father McFarland, but he added he didn't know "how well." Both couples, the Holy Cross president said, know Msgr. Peter Vaghi, who married the Robertses in 1996 in Washington and now is the pastor at the Bethesda church where the Robertses worship.
Monsignor Vaghi serves as the chaplain of the John Carroll Society, a 51-year-old Washington-based charitable and social organization. Judge Roberts's wife is a member of the board of governors, as is Mary Ellen Bork, the wife of Judge Robert H. Bork, whose nomination to the Supreme Court was bitterly opposed by Democrats and failed in 1987.
There is little in Judge Roberts's known record to suggest he could ever be so polarizing a figure.
In his confirmation testimony two years ago, he said that judges should be "ever mindful that they are insulated from democratic pressures precisely because the framers expected them to be discerning law, not shaping policy," and added: "That means that judges should not look to their own personal views or preferences in deciding the cases before them. Their commission is no license to impose their preferences from the bench."
That is not to say that Judge Roberts has a low opinion of his own persuasive powers, as a lawyer before the court or a justice on it. His friends note that he often recounts the story of losing a Supreme Court case with none of the justices ruling in his favor.
Unable to explain to his client why he had lost 9 to 0, he finally said, "Because there are only nine justices on the court."
Pam Belluck reported from Boston, and Jodi Wilgoren from Long Beach, Ind., for this article. Reporting was contributed by Jeff Gerth, Glen Justice, David D. Kirkpatrick, Neil A. Lewis and Eric Lipton from Washington; Gretchen Ruethling from Chicago; and David Staba from Buffalo; and Katie Zezima from Boston.
* Copyright 2005 The New York Times Company
From the NYT:
July 21, 2005
Filibuster on Supreme Court Nominee Appears Unlikely
By SHERYL GAY STOLBERG
WASHINGTON, July 21 - The possibility of a filibuster against John G. Roberts, President Bush's nominee to the Supreme Court, appeared to recede today, as several Democrats emerged from a meeting of swing senators to say they did not envision their party trying to block the nomination.
"This is a credible nominee, and not one that - as far as we know now - has a record that in any sense could be described as extremist," said Senator Joseph I. Lieberman, Democrat of Connecticut, after a breakfast session with the Gang of 14, a bipartisan group that helped broker a deal in May to avert a Senate showdown over judicial nominees.
While Mr. Lieberman and his Democratic colleagues were careful not to rule out a filibuster - "There's a lot I don't know about John Roberts," the Connecticut senator said - their remarks after the meeting suggested that, barring any surprise developments, they expected Judge Roberts to be eventually confirmed.
"At the end of the hearings we do not anticipate anything that would be a stickler, that would rise to the level of extraordinary circumstances," said another Democrat, Senator Ben Nelson of Nebraska, invoking the criteria that the group had agreed would warrant a filibuster. "But you can't come to that conclusion until the end of the entire process."
The 14 senators, seven Democrats and seven Republicans, met for about an hour in the office of Senator John McCain, Republican of Arizona and a member of their group. The meeting was their first since President Bush named Judge Roberts, who has served for two years on the Circuit Court of Appeals for the District of Columbia, as his Supreme Court choice.
The group discussed, but did not reach any conclusions on, various issues related to the confirmation, including whether Democrats should have access to legal memorandums written by Judge Roberts when he was in the office of the solicitor general, and what types of questions the nominee should be required to answer.
A dispute over access to documents could give rise to a filibuster, as it did when the Senate took up the nomination of Miguel Estrada to be an appeals court judge. Mr. Estrada eventually withdrew before being confirmed.
If there is a dispute, several members of the Gang of 14 said they hoped the group would intervene. "The group stands ready," said Senator Mike DeWine, Republican of Ohio, "if there's any rough sledding."
(Last one, promise.)
From the NYT:
July 22, 2005
In His Opinions, Nominee Favors Judicial Caution
By ADAM LIPTAK
A look at the 49 published opinions of Judge John G. Roberts, President Bush's nominee for the Supreme Court, reveals a distinct judicial philosophy, one that favors a strong executive, a cautious and self-effacing judiciary, limited federal power, and individual responsibility.
That aligns him in many ways with the conservative wing of the current court. But his insistence, in the two years he has sat on the federal appeals court in Washington, that judges must engage in considerable self-restraint could add a distinctive voice to a court that has not been shy in recent years in asserting its own dominance.
In a decision last year, Judge Roberts referred to "the cardinal principle of judicial restraint - if it is not necessary to decide more, it is necessary not to decide more."
He made the statement in joining a decision that the Drug Enforcement Agency had acted too aggressively in blocking the importation of ephedrine, which is used in both over-the-counter medications and methamphetamine. Judge Roberts said the majority's reasoning was too broad. "I cannot go along," he wrote of the majority's rationale, "for that gratuitous ride."
In other cases, similarly, he has shown himself to be a strict textualist, at least where legislation is concerned.
In a case concerning whether certain Navy officers had to testify in a discrimination suit, Judge Roberts chided the parties for not studying the plain words of a relevant law.
He said the lawyers' oversight reminded him of the three basic rules of statutory interpretation taught by Felix Frankfurter, before he was a Supreme Court justice, at Harvard Law School: "(1) Read the statute; (2) read the statute; (3) read the statute!"
Judge Roberts's court, the United States Court of Appeals for the District of Columbia Circuit, is generally considered the second most important in the nation, after the Supreme Court. But its docket is at once idiosyncratic and dull. It tilts heavily toward regulatory cases, claims by disgruntled federal employees and the odd criminal prosecution.
A typical case involved whether the Federal Communications Commission could require new televisions to include digital tuners. Even though neither side had seriously argued the point, Judge Roberts explored at length the possibility that the court was not authorized to hear the case because the plaintiffs had filed their challenge a day too early.
"As a court of limited jurisdiction," he wrote, "we take seriously any suggestion that we are without power to act - even one raised at the eleventh hour and not embraced as an argument but instead meekly noted." He determined that jurisdiction existed and that the F.C.C. could impose the requirement.
A Supreme Court justice's task often differs from that of an appeals court judge. Justices are in many cases concerned with the open-textured clauses of the Constitution rather than with the cascade of subparts and conditions in workaday legislation. And Judge Roberts's decisions give few hints about how he would interpret the majestic phrases of the Constitution, like "freedom of speech," "due process" and "equal protection of the laws."
If his statements about judicial restraint in his appellate decisions prove to be good guidance, though, Judge Roberts would add an approach "without any thoroughgoing representation on the current court," said Cass R. Sunstein, a law professor at the University of Chicago.
Laurence H. Tribe, a law professor at Harvard, said it would be easy to confuse the kind of restraint advocated by Judge Roberts with the pragmatic, case-by-case approach of the woman he aims to replace, Justice Sandra Day O'Connor.
Her approach often gave rise to no governing principle that could clearly be applied in future cases. Judge Roberts, on the other hand, has said that the courts must provide clear guidance.
"We have it on high authority," Judge Roberts wrote in a 2003 case chastising the Federal Aviation Administration for failing to follow its own precedents, "that the tendency of the law must always be to narrow the field of uncertainty." The authority he quoted was Oliver Wendell Holmes Jr., from his masterwork, "The Common Law."
In some ways, said Richard H. Pildes, a law professor at New York University, Judge Roberts's approach most resembles that of Justice Antonin Scalia.
"Like Scalia," Professor Pildes said, "he appears to be committed to a strong priority to the texts of statutes. And that might extend to the texts of the Constitution."
One theme that emerges from Judge Roberts's decisions is wide deference to executive power, at least where Congress has authorized it.
"The Supreme Court has consistently instructed that statutes written in broad, sweeping language should be given broad, sweeping application," he wrote last year, concurring in a decision that rejected claims against Iraq from American servicemen who had been tortured there during the Persian Gulf war.
A 2003 war appropriations law gave the new Iraqi government immunity, Judge Roberts wrote, and the complex canons of statutory construction, studded with Latin phrases, offered by lawyers for the former prisoners could not change that. "Give me English words over Latin maxims," Judge Roberts wrote.
Judge Roberts joined a decision this month allowing war crimes trials against suspected terrorists held at the naval base in Guantánamo Bay, Cuba, to resume. The decision, too, was a strong affirmation of executive power.
At the same time, Judge Roberts has indicated that he takes a limited view of the federal government's power. His clearest pronouncement was in a 2003 dissent in a case involving a federal regulation protecting arroyo toads as an endangered species.
"The panel's approach in this case," he wrote, "leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California" satisfies the constitutional requirement that Congressional power be used to regulate interstate commerce.
Professor Pildes said Judge Roberts's attitude toward federal power is similar to that espoused by Justice O'Connor.
"There is reason to believe," Professor Pildes said of Judge Roberts, "that he will be an aggressive scrutinizer of whether Congress has acted beyond its enumerated powers."
In some decisions, Judge Roberts took pains to say that there are many close questions in the law. Last year, he overturned an award of lawyers' fees to newsletter publishers who had successfully challenged an effort to license them under the commodities laws. The award of fees turned on the question of whether the government's position had been "substantially justified."
Judge Roberts said it had been. "Just as discovery of contraband does not establish probable cause," he wrote, "nor an accident negligence, nor poor returns an imprudent trustee, so too a loss on the merits does not mean that legal arguments advanced in the context of our adversary system were unreasonable."
In dissent, Judge Harry T. Edwards disagreed, saying the government's position had "bordered on the absurd."
In writings on and off the bench, Judge Roberts has bristled at efforts to punish people for the actions of members of their families.
Last year, in a case against the husband of a woman who defrauded the Department of Education of hundreds of thousands of dollars' worth of electronic equipment, the judge ordered him resentenced, saying he could not be responsible for all his wife's crimes.
The husband, Luther E. Mellen III, Judge Roberts wrote, could be faulted for helping his wife, Elizabeth, give his son from an earlier marriage a stolen laptop and for using some of the stolen goods she brought home. But there was no evidence that he had anything to do with the hundreds of other items she doled out to friends and relatives, the judge said.
"The government would have us find agreement from nothing more than the closeness of the Mellens' marriage," Judge Roberts wrote. "We think the government's resort to such arguments indicates the weakness of its case."
In his writings while a lawyer in private practice, too, Mr. Roberts objected to forfeiture laws that allowed police to seize jointly owned property in cases where one spouse was blameless. In a 1995 article in Legal Times, he took up the cause of Tina Bennis, who lost the car she owned with her husband after he was caught having sex in it with a prostitute. "Mrs. Bennis, not unreasonably, thought this was a bit much on top of everything else," Mr. Roberts wrote.
But the Supreme Court disagreed, ruling against Mrs. Bennis in 1996 by a vote of 5-to-4.
Judge Roberts has an eye for the absurd and an impatience with bureaucracy. He ruled in 2004 for an owner of an air taxi and pilot-training company in St. Louis who lost certification because of confusion over whether he had refused to take a drug test. Federal Aviation Administration regulations appeared to make the owner, Charles E. Duchek, responsible for informing himself of the date of a surprise random drug test.
"A sport such as golf can have a system of rules grounded on the assumption that participants will in good faith call penalties on themselves," Judge Roberts wrote in vacating the revocation, "but such an approach seems ill-advised when it comes to designing regulations to protect the public from drug use by those in safety-sensitive positions."
Judge Roberts showed less sympathy for Jake West, a "not especially frugal union president" convicted of embezzling $51,000 for golf vacations, dinners and home furnishings. Judge Roberts refused to allow Mr. West to withdraw a guilty plea in 2004.
And he was impatient that same year with Thomas Penfield Jackson, a trial judge who ignored sentencing guidelines in determining that Darin M. Tucker deserved probation rather than imprisonment for possessing cocaine. Judge Jackson declared that he was "not going to be an instrument of injustice."
That was unacceptable, Judge Roberts wrote. "To the extent the district court based the departure on its belief that the sentence was unjust," he wrote, "it relied on a factor that is clearly impermissible under the guidelines."
Some news on Roberts:
August 4, 2005
Roberts Helped to Shape 80's Civil Rights Debate
By ROBIN TONER and JONATHAN D. GLATER
WASHINGTON, Aug. 3 - He produced a torrent of memorandums explaining why the Reagan administration was right to oppose new provisions in the Voting Rights Act that had just passed the House with an overwhelming majority.
He drafted op-ed articles for his boss, Attorney General William French Smith, and he circulated talking points warning that Congress - by trying to make it easier to prove voting rights violations - was on the verge of creating "a quota system for electoral politics." He scribbled angry notes on newspaper articles that showed an official from another department was veering off-message.
It was 1981 and John G. Roberts Jr. was 26, two years out of Harvard Law School and an eager combatant in the political wars - including the one over the landmark 1965 Voting Rights Act, which was up for renewal in Congress. In general, he wrote to one of his mentors after three months on the job: "This is an exciting time to be at the Justice Department. So much that has been taken for granted for so long is being seriously reconsidered."
With his position as a special assistant to the attorney general, Mr. Roberts became engaged in one of the most bitterly divisive struggles of the Reagan revolution - the effort to develop a new, more conservative approach to civil rights and voting rights, according to documents released by the National Archives.
The Reaganites and their allies said they were simply trying to move away from racial preferences and quotas while maintaining a commitment to equal opportunity - "to moderate the excesses, particularly in the remedial measures, that had been pursued by the prior administration," as Charles J. Cooper, a top aide in the Justice Department at the time, put it last week.
But civil rights advocates and their allies asserted that the Reagan administration was insensitive to the deep-rooted realities of race and discrimination - nowhere more so, perhaps, than on a need to strengthen the Voting Rights Act. This debate, and Mr. Roberts's role in it, are drawing heightened scrutiny - and criticism - as he heads toward confirmation hearings next month for the Supreme Court.
Representative John Lewis, the Georgia Democrat and civil rights leader who was severely beaten during the voting rights campaign of 1965, said he was troubled by Mr. Roberts's writings from the 1980's, as they have come to light in recent days. "I think the senators on both sides should really grill him on not just his commitment to the Voting Rights Act, but his understanding of what the fight was all about - the spirit of the act, not just the letter," Mr. Lewis said.
Senator Edward M. Kennedy, Democrat of Massachusetts and a member of the Judiciary Committee, said some of the documents from the time suggest Mr. Roberts "had a rather cramped view of the Voting Rights Act."
Dana M. Perino, a spokeswoman for the White House, said Mr. Roberts had simply been doing his job: advocating the point of view of the Reagan administration at the time and trying to avoid Congressional passage of voting rights provisions "that were thought to be so broad as to invite challenge." She added, "The final legislation mitigated such concerns."
The Justice Department itself was deeply divided over these issues in the early 1980's. "There was a period of warfare between the political appointees and the career people," said Gerald Hebert, a longtime Justice Department lawyer who clashed with the Reaganites and now heads a campaign finance watchdog group.
A series of race-related controversies erupted in that first year, one concerning the administration's abortive attempt to restore tax-exempt status to private schools that discriminated on the basis of race. At the same time, Congress was trying to extend - and strengthen - the 1965 Voting Rights Act, which had transformed the South by opening the door to black political participation.
Civil rights groups were seeking new provisions intended to overturn a 1980 Supreme Court decision involving at-large elections in Mobile, Ala. In that case, the court held that certain lawsuits alleging a denial of voting rights must show there was an intent to discriminate, not just a discriminatory effect.
Civil rights groups and their allies said the court was misinterpreting the law, making it far too difficult to prove violations. The House responded and included the new and broader provisions in legislation that passed, 389 to 24, in October 1981.
After much speculation, Mr. Reagan weighed in a month later, expressing his support for the extension of the Voting Rights Act. But he declared that he wanted to stick with the stricter standard requiring proof that discrimination was intentional.
Civil rights groups were outraged. "Intent to discriminate is impossible to prove," declared Vernon E. Jordan Jr., then president of the National Urban League. "Local officials don't wallpaper their offices with memos about how to restrict minority-group members' access to the polling booth."
Mr. Jordan made his remarks in an Op-Ed article in The New York Times. Mr. Roberts was eager to fight back. "It was suggested that we consider responding to Vernon Jordan's Nov. 16 piece in The New York Times criticizing the president for his 'sham' endorsement of the Voting Rights Act," Mr. Roberts wrote on Nov. 17, 1981, in a memorandum to top Justice officials, among the many released by the National Archives last week. "I have taken a stab at a first draft if anyone is interested in appropriating all or parts of it."
In his draft, Mr. Roberts argued that the bill passed by the House was essentially "a radical experiment in a law that has been so widely praised for its effectiveness." Over the next few months, he wrote memorandum after memorandum on the dangers of moving to the broader language.
He argued, according to a January briefing paper to prepare Attorney General Smith for Congressional testimony, that the House bill would essentially "establish a quota system for electoral politics, a notion we believe is fundamentally inconsistent with democratic principles." He added that "at-large systems of elections and multimember districts would be particularly vulnerable to attack, no matter how long such systems have been in effect or the perfectly legitimate reasons for retaining them."
He drafted an op-ed article for Mr. Smith warning that the bill would "gradually lead to a system of proportional representation based on race or minority language status." And he prepared Mr. Smith for a meeting at the White House with a memorandum that declared: "The president's position is a very positive one and should be put in that light. He is for the Voting Rights Act and wants to see it extended."
He added, "That is essentially the president's position - if it isn't broken, don't fix it."
In the end, after months of fierce struggle, a compromise was brokered by Senator Bob Dole, Republican of Kansas, that required proof of discriminatory results, based on "the totality of circumstances." The compromise stipulated that this did not mean minorities had a right to proportional representation.
Heather K. Gerken, a law professor at Harvard, said the new law meant that anyone filing a lawsuit under the Voting Rights Act need not show that government had intended to discriminate on the basis of race, but only that a policy - say, a redistricting - had diluted the power of the plaintiff's vote.
Mr. Roberts's side had lost, although the Dole compromise did reflect a fallback position he eventually advocated.
Richard L. Hasen, an election law specialist at Loyola Law School in Los Angeles, noted that views could change over time, but added that Mr. Roberts in 1981-82 "showed a pretty strong disagreement with the efforts to make it easier to prove vote dilution."
Mr. Hasen added, "I certainly think that had the Roberts view prevailed, we would have many fewer minority elected representatives in Congress and in state and local government."
Mr. Cooper, Judge Roberts's friend and former colleague in the Reagan administration, saw it differently.
"We believed that racial gerrymandering and various types of electoral devices intended to guarantee a certain number of seats was not good public policy," Mr. Cooper said. He noted that the administration did end up with a law that explicitly said there was no guarantee of proportional representation for any minority.
An interesting article on Roberts from this morning's
Boston Globe:
Roberts helped gay-rights activists win landmark ruling
Court nominee had background role in decision
By Richard A. Serrano, Los Angeles Times | August 4, 2005
WASHINGTON -- Supreme Court nominee John G. Roberts Jr. worked behind the scenes for a coalition of gay-rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people against discrimination because of their sexual orientation.
Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay activists as part of his law firm's pro bono work. While he did not write the legal briefs or argue the case before the Supreme Court, he was instrumental in reviewing the filings and preparing oral arguments, according to several lawyers intimately involved in the case.
The coalition won its case, 6 to 3, in what gay activists described at the time as the movement's most important legal victory. The three dissenting justices were those to whom Roberts is frequently likened for their conservative ideology -- Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.
Roberts's role working on behalf of gay 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 his help on the case, Walter A. Smith Jr., then-head of the pro bono department at Hogan & Hartson, said Roberts did not hesitate.
''He said, 'Let's do it.' And it's illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job," Smith said.
Roberts did not mention his work on the gay-rights 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.
But Smith said yesterday that was probably just an oversight because Roberts was not the chief litigator in Romer v. Evans, which struck down a voter-approved 1992 Colorado initiative that would have allowed employers and landlords to exclude gays from jobs and housing.
Jean Dubofsky, lead attorney on the case and a former member of the Colorado Supreme Court, said she came to Washington to prepare for the Supreme Court presentation and 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."
The case was argued before the Supreme Court in October 1995, and the ruling was handed down the following May. Activists across the country cheered the victory. Suzanne B. Goldberg, a staff attorney for Lambda, a legal services group for gays and lesbians based in New York, called it the ''single most important positive ruling in the history of the gay-rights movement."
