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John Roberts, Collegiality, and the Romer v. Evans Moot Court:

Romer, recall, is the case in which Judge Roberts -- then a partner in Hogan & Hartson -- helped out the gay rights side by participating in a moot court for their Supreme Court argument, apparently because a partner at his firm was involved in the case and wanted Roberts' help. People wonder whether you can tell much from this incident about what Roberts thinks about the underlying issue. I think the answer is "no," and here's a quote that I think helpfully explains why:

"John was building an appellate practice at our firm. And he wanted to be able to have the freedom to bring cases into the firm that were of interest to him. John therefore was open to being helpful to other partners and their clients. Pretty standard for a big law firm practice."

-- Mr. David Leitch, Former Partner with John Roberts at Hogan & Hartson (1987-1990, 1993-2001).

Seems to me that this is precisely how lawyers at big firms -- especially lawyers with Roberts' reputation for affability and collegiality -- operate. I got the quote from a Republican source, but I have no reason to doubt the quote's genuineness.

Cheburashka (mail):
Sounds 100% right to this big firm lawyer.

This morning I asked a (more) junior associate, in telling her how to put something together for the person who would read it, "If you were a big partner at a big law firm, what would be the thing in the world you care the most about, more than anything else, the thing that really excites you?"

Money.
8.8.2005 7:00pm
A not infrequent commenter:
I agree that reading in to Roberts assistance in Romer is not really useful. Part of it's just being a part of a firm, but...

Also, If there is one thing I've learned as a relatively socially conservative law student, is that just even questioning the idea that there may be some element of choice in sexual orientation is frowned upon. So it would not surprise me, that Roberts would go along regardless of his personal feelings. If there is one thing that the legal environment frowns heavily upon it's questioning the orthodoxy on anything related to sexual orientation. So it's just better to move along do your job, and act as normal as possible.
8.8.2005 7:02pm
BigBob:
"So it's just better to move along do your job, and act as normal as possible." I don't buy this, as my assumption is that (1) Roberts is a principled man and (2) has a backbone.

I also think that people are missing the point. The point isn't that Roberts is guaranteed to be pro-Romer or particularly pro-gay in any other case. I think the real issue is that he DOES now see somewhat more likely to approach gay issues without a pre-established, powerful ideological bias against gay rights. The reason that's a big deal is this: George Bush captured the White House in part because he promised to deliver the Supreme Court to the social conservatives who work so tirelessly against the rights of gay people. And the Republicans control 55% of the senate, so it wouldn't have been a huge risk to appoint somebody who had a strong anti-gay paper trail. And Bush appoints somebody who worked PRO BONO on ROMER???!!! It's not much maybe, but it's definitely much, much worse than the religious right was hoping. There were plenty of short-list candidates with a strong anti-gay paper trail. Now we've got somebody who has not only understood, but worked on behalf of, the other side of the issue.
8.8.2005 7:29pm
cfw (mail):
I know lots of big firm partners who would not go near a death penalty case or a gay rights case. The fact that R put down 25 hours for both types of cases says to me that he worked in a reasonably liberal or middle of the road firm, and helped out the more left-leaning lawyers in the firm. Kudos.

Statistically, this "best oral advocate before the Supreme Court of his generation" (of all time?) had a 65% win percentage. In about half of the cases he orally argued, he represented the US - so he probably won 65-70% of those 19-20 cases. Hence, in the private cases, he probably lost 10-11 of 19-20 times.

He could well have thought: so what if I helps out with oral argument preperation? Most matters before the Supreme Court turn on facts and briefs, as they should, not oral argument. What harm could I do? Even with the very best private oral advocate, the Court will do what it will do.

Am I missing something?
8.8.2005 8:18pm
Steve Smith (mail) (www):
I don't see the connection. He wanted to build an appellate practice at H&H and have the freedom to bring cases that were of interest to him. So why would that entail him giving up his free time to participate in the preparation for a highly volatile case concerning one of the most divisive issues in the country? There are ways he could be "helpful to other partners and their clients" without devoting hours to assist them if he didn't really believe in their case.
8.8.2005 10:19pm
Jim Rhoads (mail):
Steve:

What goes around comes around. In big firms too. An indivdual building a new or developing practice within one had better understand the truth of this somewhat banal aphorism.
8.8.2005 11:01pm
Medis:
I think what bothers "social conservatives" is that even on the best reading, Roberts was putting personal gain and/or collegiality ahead of the sorts of principles they want their Justices to be adamant about. In their view, it is precisely this sort of accomodation that has led to Justices Souter and Kennedy rather than Justice Bork.

And to put it bluntly, if you believe in an ongoing "culture war", you don't want your Generals spending time advising the enemy on tactics.
8.9.2005 9:41am
Eh Nonymous (mail) (www):
I think this discussion about "backbone" and "intelligent self-interest" and "balanced views" and "collegiality" misses the point.

Roberts is a bad candidate, as far as your garden-variety pseudo-Christian is concerned, because he does not bitterly despise and fear gays and gay sex. If you don't do this, clearly you are not following the teachings of the Lord Jesus, who said, I may be misquoting but it's from memory...

Treat thy neighbor as thy brother, unless he is gay, in which case shun him.
Do unto others as ye would they do unto you, unless they are gay, in which case shun them.
Let he who is without sin cast the first stone, unless it's at a gay.
He who loves a stranger loves me, and he who hates any man is not my follower, unless the guy you're hating loves other guys in a way I wouldn't approve of, as elucidated by narrow-minded bigots who have perverted my words to mean the opposite of what I said and intended.

I don't mind the idea that the teachings of Jesus are a foundation for a good (limited, nonintrusive) government, but the teachings of the "pro-family" anti-gay movement are anathema to, well, almost anyone with a half-decent understanding of the actual teachings of Christ or with any respect for their fellow humans.

I depart from my fellow leftists: there is such a thing as an illegitimate view, and oddly enough it's the most vocal and most conservative wing of the majority religion in this country which is the most obvious holder of one such. Almost makes me sympathize with militant atheists.
8.9.2005 10:30am
Lawbot2000:
I think the only one "bitterly despising and fear[ing]" another group is you, Eh Nonymous.
8.9.2005 10:58am
Public_Defender:
Roberts' actions in this and other cases show that he has a respect for the adversarial process. That tells me he won't be insulted by having to read liberal arguments, but it doesn't tell me that he'll deviate from a more conservative line.
8.9.2005 2:33pm
BigBob:
I think that some conservatives are fooling themselves. It may not be super significant, but it's not as easy as "he believes in the advesial process." I belive in that process to, but I won't work for [insert outrageously offensive group here....KKK member fighting for right to burn black churches? Neo-Nazi seeking right to burn synangogues? ]

No matter how open minded we are as lawyers, no matter how much we believe in the American legal system, we all draw lines at some point and say "No, I won't work for THAT cause/person no matter what." The religious right was hoping desperately that Bush's nominee would put gay civil rights activists in the "no way" category. He didn't.
8.9.2005 4:38pm
Public_Defender:
I see the point that Roberts does not put gay rights in the "no way" category. That's a hopeful sign from my point of view, but I don't think your examples are helpful. The Supreme Court is not going to hear a case of a "KKK member fighting for right to burn black churches" or a "Neo-Nazi seeking right to burn synagogues."

More realistically, would Roberts have helped pro bono lawyers representing the KKK or neo-Nazi's in, say, a free speech case that the Supreme Court had agreed to hear? It certainly would be consistent with his view of how lawyers are supposed to act. And no thoughtful person would ever accuse Roberts of being pro-Nazi or pro-KKK.
8.9.2005 5:07pm
BigBob:
Huh? I didn't chose the free speech issue for a reason. I was looking for an example that we could all agree to be outrageous, not for an example that was actually likely to come before the court. My point wasn't dependent on whether the case is likely to arise.

My point is this (and I think you, Public Defender, agree) : we all have certain situations in which we'd draw the line, even when we are under professional pressure to help out. And the religious right was hoping for a nominee who would draw a line before gay rights. They didn't get one.

(As for the free speech question, I don't think it would tell us much. I mean, even the ACLU, which loves the gays, would help out a Nazi in certian free speech cases. This just goes to show you that free speech issues are different and never tell us much about what the person really thinks...)
8.9.2005 7:50pm
Eric N. Kniffin:
There's another question here that I haven't seen asked: why would gay rights activists come forward and speak about Roberts in such glowing terms? Is it really to support Roberts? Or is it perhaps instead a strategic effort to discredit Roberts in the eyes of Evangelicals and Catholics?
8.9.2005 11:21pm
Eric N. Kniffin:
If I'm right, then it appears that this gay rights advocate's tactics are working....
8.9.2005 11:23pm
BigBob:
"Is it really to support Roberts? Or is it perhaps instead a strategic effort to discredit Roberts in the eyes of Evangelicals and Catholics?"

I've seen this idea several places, but it doesn't make much sense to me. If Roberts gets derailed, and if it has anything to do with the pro-gay thing, then Bush will surely nominate somebody with a more solid anti-gay record instead. Gay rights groups know this. And they know that Roberts is the best they can hope for. So why would anybody in the gay camp want to hurt his chances?
8.10.2005 12:00am
Eric N. Kniffin:
BigBob,

But wouldn't the gay camp realize that they are hurting his chances by beaming all over the news about how much Roberts helped them in Romer v. Evans? How much better to sit on that information and then break it out after Roberts' confirmation: "Ah, he really isn't that bad anyways..."

I think you're right that the left must be thrilled about this connection with Roberts and Romer. But, doesn't it seem like a strategic error to talk about it so?
8.10.2005 1:26am
Public_Defender:
Strategic error? Do you really think the Republicans could get 51 votes to oppose Roberts because he once had a minor role in helping to defeat an anti-gay measure? They'd have to be unredeemable, flaming, anti-gay bigots to oppose Roberts over this. There are certainly some anti-gay Republicans in the Senate, but I doubt any are bigoted enough to oppose Roberts over this.

I hope my fellow liberals are using the Romer information to encourage would-be attackers to keep their powder dry for the duration of this fight. We can't win. And given the alternatives, I don't know if we want to win.
8.10.2005 9:12am
BigBob:
I agree with Public Defender.

(BTW, Eric Kniffin, the gay camp isn't publicly beaming. Even after the story broke, major gay rights organizations were very careful not to be publicly excited. In fact they are still somewhat negative about Roberts in their press releases. But not passionately so.)
8.10.2005 9:29am
Eric N. Kniffin:
Thanks for your input, Public Defender &BigBob. I concede the point that this is unlikely to change the course of the Roberts nomination. Republican senators aren't going to start drilling their president's nominee on how much he likes homosexuals. But perhaps the greater damage would be to the GOP in the longer run, shaking social conservatives' confidence in the party.

I guess I'm just trying to figure out how all these puzzle pieces fit together, and I just don't see it yet. Does it seem plausible to you that Bush &his people didn't know about Roberts' connection with Romer? That doesn't seem likely to me, but it seems even less likely that they knew and did not care. Unless, that is, his role was very minor and has been blown out of proportion in these news stories. That is what I think is the most likely scenario.
8.10.2005 12:35pm
BigBob:
"Does it seem plausible to you that Bush &his people didn't know about Roberts' connection with Romer? " Possible, but anyway if he did tell them I'm sure he emphasized how little time it was.

"Unless, that is, his role was very minor and has been blown out of proportion in these news stories. That is what I think is the most likely scenario."
I think the media has emphasized how small the role was, so I don't think it's being blown out of proportion. But yes, I agree that it's likely his role was minor.
8.10.2005 8:34pm