By R. Jeffrey Smith and Jo Becker
Washington Post Staff Writers
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."
John Glover Roberts, 50, was born in Buffalo and grew up in the town of Long Beach, Ind., as the son of a Bethlehem Steel executive. He graduated first in his high school class and then attended Harvard University, graduating summa cum laude in only three years. One of his advisers, William P. LaPiana -- now a law professor who says he "probably disagrees with Roberts about just about everything" -- recalls him as a rare font of Middle America conservatism on a campus that was overwhelmingly liberal. He also recalls Roberts as an unusually modest and mature young star who already displayed a judicial temperament.
Roberts then excelled at Harvard Law School, becoming managing editor of the prestigious Harvard Law Review, where he was known as something of a straight arrow. David W. Leebron, who is the president of Rice University and was the editor of the review at the time, recalls that after working late they would often stop for ice cream. Roberts always chose the same flavor: chocolate chip. "I'm the type of person who wants to try other things, but he makes his choices and gets comfortable with them," Leebron said.
Paul Mogin -- his former law school roommate and co-clerk, and a self-described liberal -- said Roberts was conservative but nonconfrontational when it comes to politics. "I doubt he has any particular agenda that he'd be going into the court with," said Mogin, who asked Roberts to be the best man at his wedding.
Roberts chose a fairly traditional path to legal prominence. He clerked for Judge Henry J. Friendly of the U.S. Court of Appeals for the 2nd Circuit, in New York, and then for Rehnquist. He later worked as a special assistant to Attorney General William French Smith and then joined President Ronald Reagan's staff as an aide to White House counsel Fielding.
He joined the Washington law firm of Hogan & Hartson in 1986; three years later he joined President George H.W. Bush's administration, arguing cases before the Supreme Court as Starr's principal deputy.
Roberts's remarks criticizing Roe v. Wade were included in a brief he co-authored arguing that barring federal financing of abortion counseling fulfilled the intent of a law that had not previously been interpreted in that manner. Separately, he co-wrote a brief arguing that an antiabortion group was not discriminating against women by trying to shut down abortion clinics through protests; the Supreme Court agreed. While Starr's deputy from October 1989 to January 1993, Roberts wrote a brief urging the Supreme Court to accept the constitutionality of prayer at a public school graduation ceremony. He also co-authored a brief supporting a law criminalizing the burning of the American flag. In both cases, the Supreme Court rejected those arguments.
In 1990 and 1991, according to his liberal critics, Roberts also co-wrote briefs arguing against the imposition of a new desegregation decree for Oklahoma public schools and against the need to inform defendants that they may be sentenced to longer terms than agreed to under a plea bargain. The Supreme Court rejected the latter argument.
When his nomination to the appeals court died at the end of the first Bush administration, Roberts returned to Hogan & Hartson, where he headed the firm's appellate practice and frequently argued before the Supreme Court, winning a lot more than he lost. He also became a millionaire; his net worth is between $2,780,039.44 and $6,870,000.
During his two stints at Hogan & Hartson, he represented varied corporate and professional clients. The cases he considers most significant, according to his Senate testimony, involved his representation of a man convicted of filing false Medicaid claims, the National Collegiate Athletic Association, the state of Hawaii, a road-sign manufacturer, the Chrysler Corp., a group of coal companies and Litton Systems.
Some of his liberal critics point in particular to a brief he wrote supporting the National Mining Association in its efforts to bar lawsuits by local citizens against a type of mineral extraction that involves blasting off the tops of mountains and dumping the debris in streams.
Roberts's name did not appear on any of the briefs during the Florida presidential recount, but sources say he gave Jeb Bush critical advice on how the Florida legislature could name George W. Bush the winner at time when Republicans feared the courts might force a different choice.
After he was named to the appellate court in 2003, Roberts's first writing was a dissenting opinion from a decision by his colleagues on the U.S. Court of Appeals not to reconsider a three-judge panel's ruling protecting a rare California toad under the Endangered Species Act.
Roberts did not rule out the possibility that the act had been correctly applied, but he thought the court should give a developer whose freedom of action had been restricted in favor of the toad another chance to make his argument that the Constitution did not permit the government to regulate activity affecting what he called "a hapless toad" that "for reasons of its own lives its entire life in California."
Besides the toad case, earlier this month he backed the administration's plan to let special panels of military officers conduct trials of terrorism suspects detained in the U.S. military prison at Guantanamo Bay, Cuba, overturning a lower-court decision that had blocked the "military commissions" for the past eight months.
The nominee is married to Jane Sullivan. They have two children, John and Josephine, and have lived for more than a year in a three-story Federal-style house in Chevy Chase that he bought for $1.225 million in 2003. It has a well-trimmed lawn, and neighbor James McNaughton say Roberts often cuts it himself.
"He's Mr. American," McNaughton said. "He's kind of friendly, a nice fellow. He doesn't buttonhole you and lecture you on politics or religion."
Another neighbor, Elizabeth White, a math specialist at a Montgomery County elementary school, said he is a "wonderful husband and a wonderful, devoted father."
Staff writers Michael Grunwald, Charles Lane and Nancy Trejos, research editor Lucy Shackelford, and researcher Madonna Lebling contributed to this report.