In Private Practice, Roberts's Record Is Mixed
Some Cases Run Counter to Conservative Image, but Activists on the Right Say His Past Is Irrelevant

By Jo Becker and Michael Grunwald
Washington Post Staff Writers
Friday, August 5, 2005

As a private lawyer, John G. Roberts Jr. represented homeless Washingtonians who had lost their government benefits because of city budget cuts. He advocated environmental protections for Lake Tahoe, Glacier Bay and the Grand Canyon. He spent 25 hours assisting a convicted murderer with a death penalty appeal. He even helped gay rights activists win a landmark Supreme Court anti-discrimination case.

At first blush, these cases would seem to complicate any image of the Supreme Court nominee as a down-the-line conservative. But as details have emerged in recent days, conservative groups have been busy spreading the word to their members and the broader public about what they should think of Roberts's work in private practice: Pay it no mind.

At second blush, Roberts's role is hardly surprising, say people who have worked with him or studied his career. For more than a decade, he practiced appellate law at the Washington firm Hogan & Hartson in a distinctly non-ideological fashion. Now, as liberal and conservative activists pick over his career for evidence of his political and legal philosophy, neither side seems to attach much importance to his diverse practice. And some activists on both sides remain secure in their conviction that he is an emphatic conservative who will move the high court to the right -- never mind his client list.

The Los Angeles Times reported yesterday that in 1996, as part of his firm's pro bono program, Roberts offered limited aid to opponents of a Colorado referendum that allowed discrimination against gays. The case led to a landmark Supreme Court ruling that protects people from discrimination based on their sexual orientation.

But Nan Aron of the liberal Alliance for Justice said that Roberts's involvement "doesn't say anything about his judicial philosophy." And Sean Rushton of the conservative Committee for Justice called the Colorado case "a red herring meant to divide the right."

"I don't think this is serious," said Bill Kristol, editor of the Weekly Standard. "Most conservatives are very pleased. . . . He has a long record, and has been very consistent."

The prevailing view of Roberts as a reliable conservative initially emerged from his résumé as a clerk to then-Associate Justice William H. Rehnquist, aide to President Ronald Reagan, deputy to then-Solicitor General Kenneth W. Starr and nominee of President Bush. That view was solidified by the release of forceful memos he wrote while serving in the Reagan administration, during which he helped shape policies opposing affirmative-action quotas and busing of schoolchildren to achieve desegregation. During the administration of George H.W. Bush, he signed a brief that called Roe v. Wade "wrongly decided."

In recent days, the White House and its allies have grown concerned that the documents released so far have painted Roberts as a rigid ideologue, and they have sought to provide a more complete portrait. Yesterday, the Bush administration released two Reagan-era documents sought by The Washington Post and others under the Freedom of Information Act. The Post request included thousands of other documents, which were not released.

In one memo, Roberts argued that Reagan should not interfere in a Kentucky case involving the display of the Ten Commandments on public property. In the other, he wrote that the bomber of an abortion clinic should not receive any special consideration for a pardon. "No matter how lofty or sincerely held the goal, those who resort to violence to achieve it are criminals," Roberts wrote.

Advisers to the White House have been urging the Bush team to be more aggressive about providing its own narrative of Roberts.

"There needs to be a good branding effort," said one Republican strategist involved in pro-Roberts strategy. "We do need to get out and start defining who this guy is."

Neither side has focused much attention yet on his work from 1986 to 1989 and from 1993 to 2003 at Hogan & Hartson, where he sometimes took on cases that clashed with conservative orthodoxy. For example, he once defended racial preferences for Native Hawaiians -- a case he lost to Theodore B. Olson, a prominent Republican in the appellate bar. On the other hand, Roberts assisted Republican Gov. Jeb Bush at no charge during the Florida presidential election recount in 2000.

"It's good for lawyers to represent clients on all sides of the political spectrum," Olson said. "You can't read anything into his personal feelings about the case."

The Supreme Court hears only about 80 cases a year, so even elite appellate lawyers such as Roberts have to compete for cases, and they rarely turn them down. Olson said that Supreme Court specialists also regularly help less-experienced lawyers prepare as a professional courtesy. And Hogan & Hartson lawyers said the firm has a culture in which every partner and associate is expected to help out on pro bono cases when asked.

That is what happened in the Colorado gay rights case, Romer v. Evans , in which lawyers seeking to strike down the referendum sought the help of Hogan & Hartson. Walter Smith, then head of the firm's pro bono department, turned to Roberts for assistance. Smith said Roberts readily accepted, helping to grill the lawyers handling the case during a mock trial, in which he played the role of Justice Antonin Scalia. Roberts also helped devise a strategy for the case.

"He only put in a few hours, but a few hours with John Roberts is probably worth a few weeks with someone else," Smith said. "John was always willing to help on pro bono cases, regardless of the politics. Not all his conservative brethren felt that way."

On conservative Web sites yesterday, there was scattered negative reaction to the news that Bush's nominee had helped to advance the cause of gay rights. "Frankly, I find it hard to believe that a 'conservative' Roman Catholic would not have declined to participate on moral grounds," one person wrote at http://www.confirmthem.com/ .

John Yoo, a law professor at the University of California at Berkeley who served as a deputy assistant attorney general in the Bush administration, said the pro bono case was unusual for a conservative Republican lawyer. "Usually, conservative lawyers take on the more conservative causes," Yoo said.

On balance, the conservative establishment remained firmly supportive of Roberts. "While this is certainly not welcome news to those of us who advocate for traditional values, it is by no means a given that John Roberts' personal views are reflected in his involvement in the case," the group Focus on the Family said in a statement.

David Leitch, a former Hogan & Hartson partner, said Roberts never brought politics into his practice.

"We were Republicans, no question about that," said Leitch, who is now the general counsel of the Ford Motor Co. "But I never knew John to turn down a case for ideological reasons. He was there to represent clients. And he did it very well."

Staff writer Peter Baker contributed to this report.

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