Two July 20 articles on John G. Roberts Jr., the federal appellate judge nominated to the Supreme Court by President Bush, said Roberts is a member of the Federalist Society. The White House says Roberts does not recall ever being a member.
John G. Roberts Jr.
Record of Accomplishment -- And Some Contradictions
Wednesday, July 20, 2005
In 1991, John G. Roberts Jr., then deputy solicitor general in the George H.W. Bush administration, told the Supreme Court that its historic decision supporting a woman's right to an abortion was "wrongly decided and should be overruled." In 2003, when Roberts was up for a judgeship, he played down his earlier statement, explaining that he made the administration's case against Roe v. Wade only because that was his responsibility as its lawyer.
After 11 years in government service and 10 years at one of Washington's largest law firms, Roberts has earned a reputation as a brilliant litigator who argues passionately for his clients' positions. The question the Senate will debate as it decides whether to elevate him to the Supreme Court is which of those positions are also his own.
As a long-standing member of the Republican National Lawyers Association who gave Gov. Jeb Bush (R) private legal advice during the 2000 presidential election recount in Florida, Roberts has clear political loyalties. As a former clerk to then-Associate Justice William H. Rehnquist, a protege of former solicitor general Kenneth W. Starr and a member of the Federalist Society, he has solid conservative credentials.
But in his first two years on the federal bench, his opinions have been generally noted for dispassionate reasoning rather than inflammatory language. Roberts's short time on the bench, coupled with the relative paucity of his writings, has left critics and potential supporters with little by which to judge how he will vote on the Supreme Court.
In his confirmation hearings for a federal judgeship in April 2003, Roberts maintained that he always separates his personal beliefs from his duty to follow the law -- including Roe v. Wade , which he described as a long-settled precedent. He reminded the Senate Judiciary Committee that John Adams once represented a British soldier involved in the Boston Massacre, proof that "the positions a lawyer presents on behalf of a client should not be ascribed to that lawyer," and said his own private legal practice had not been "ideological in any sense." Roberts said he has represented supporters as well as opponents of affirmative action, and he once helped a group of welfare recipients get benefits restored.
As President Bush noted last night, 146 members of the D.C. bar -- Democrats as well as Republicans -- signed a letter calling him "one of the very best and most highly respected appellate lawyers in the nation" and hailing his "unquestioned integrity and fair-mindedness." Those strong relationships on both sides of the Beltway's partisan divide could help smooth his Senate confirmation, enabling him to convince conservatives that he won't be the next David H. Souter without worrying Democrats that he will be the next Antonin Scalia.
Still, his journey to the federal bench did not leave him unscathed. He never came up for a vote the first time he was nominated to the U.S. Court of Appeals for the D.C. Circuit by President George H.W. Bush. And his nomination to the same court by the current president attracted opposition from the liberal Alliance for Justice and NARAL Pro-Choice America. Many liberals suspect that the conservative positions he advocated in the Reagan administration were no different from the positions he would advocate on the court. Many conservatives think so, too, even though Roberts is less outspoken and less aggressive than some of the other judges considered for the court.
"I know he's conservative by talking with him about issues," said Fred F. Fielding, for whom Roberts worked as a White House deputy counsel. Fielding said Roberts supported expansive presidential powers and tended toward a "more literal reading of the Constitution."
C. Boyden Gray of the Committee for Justice, a nonprofit conservative group established to support Bush nominees to the federal courts, called him a "brilliant choice."
John C. Yoo, a conservative professor of law at University of California at Berkeley who served in the Justice Department in the current administration, emphasizes what he called Roberts's traditional approach to the law. In the 39 cases that Roberts argued before the Supreme Court -- 25 of which he won -- Yoo said he never pushed the court to adopt "big new theories" but rather argued the facts of his cases.
"He's the type of person that business conservatives and judicial-restraint conservatives will like but the social conservatives may not like," Yoo said.
"What the social conservatives want is someone who will overturn Roe. v. Wade and change the court's direction on privacy," he added. "But he represents the Washington establishment. These Washington establishment people are not revolutionaries, and they're not out to shake up constitutional law. They might make course corrections, but they're not trying to sail the boat to a different port."