Nominee Excelled as an Advocate Before Court
Sunday, July 24, 2005
On a Friday in October 1990, the Justice Department got some bad news from the clerk of the Supreme Court: The justices had disqualified a young assistant solicitor general scheduled to argue a highly technical bankruptcy case the next Monday.
For a replacement, Solicitor General Kenneth W. Starr tapped his 35-year-old principal deputy, John G. Roberts Jr. Roberts spent the weekend on the case, came to the court Monday morning and fielded questions from the justices for the government's allotted 10 minutes.
Then, in the afternoon, he went to the second-most-powerful court in town, the U.S. Court of Appeals for the D.C. Circuit, and argued another case -- a complicated financial dispute between the Environmental Protection Agency, which Roberts represented, and the water authority of Rochester, N.Y.
Roberts's side won both cases.
It is a story lawyers who practice before the Supreme Court tell with palpable awe. It illustrates why so many of them believe that Roberts is among the best in their profession -- and why they believe that his qualities would serve him well on the other side of the bench.
Although other justices in recent times have come from a career spent mostly in law practice, Roberts's nomination is the first in at least a century in which a former leader of the small, elite group of lawyers who regularly practice before the high court has been picked as a justice, according to Supreme Court historian Dennis J. Hutchinson of the University of Chicago.
To argue before the Supreme Court on only a couple of days' notice is rare. But to do so on the same day as appearing before another demanding federal appeals court is practically unheard of, lawyers say, a challenge that only the most confident and versatile of advocates would take on.
Carter G. Phillips, a leading Supreme Court lawyer, likened Roberts's performance to a race car driver's being thrown into the Indianapolis 500 in the morning, and winning, then earning a victory in a stock car race in the evening.
"The hardest part is the adrenaline," Phillips said. "You get this rush in the morning . . . and then it pours out at noon." To stand up before a second difficult tribunal while still riding this physical and mental roller coaster, he said, "would be very tough."
Although his experience as a Supreme Court lawyer has prepared Roberts to deal with the constitutional issues the court faces, it has offered relatively few opportunities to deal directly with ordinary citizens and mundane legal issues.
The vast majority -- 95 percent -- of his work has been in federal courts, not in the state courts where most U.S. legal proceedings take place, Roberts noted in a report to the Senate Judiciary Committee during his 2003 confirmation for the job he currently holds as a judge on the D.C. Circuit. Roberts added that he had worked on one jury trial in his career, and his involvement did not include appearing before the jury.
Also, the court under Chief Justice William H. Rehnquist is not known for a great deal of private discussion or debate about cases. Justices generally communicate with one another through short, typewritten notes. Roberts's persuasive talents may be less relevant in such a climate.