washingtonpost.com
The Real Roberts?

By Richard Cohen
Tuesday, August 9, 2005

John G. Roberts Jr. is out of the closet.

President Bush's nominee for the Supreme Court, on the basis of the available evidence and all we know about human behavior, is not -- and I emphasize not ! -- a bigot. Specifically, he seems to harbor no prejudice against gay men and lesbians, who are, as we all know, anathema to social conservatives, who are anti-gay and pro-Bush, in about equal measures. Roberts, amazingly and inexplicably, seems to be a man of tolerance.

The evidence for this was the revelation by the Los Angles Times last week that Roberts volunteered his time on behalf of gay rights. As a partner in the prestigious Washington law firm of Hogan & Hartson, Roberts helped prepare lawyers who were challenging a Colorado law that specifically exempted gays from state anti-discrimination measures. In other words, a landlord or employer in Colorado could not have discriminated against blacks or Muslims or Asians or Jews or whites or greens or penguins, but could against gays. This odious exception to the law was eventually struck down by the Supreme Court, 6 to 3, in 1996. Roberts played a role.

According to the Times and others, Roberts helped develop the winning legal strategy and prepared Jean Dubofsky, the lead lawyer for the gay rights groups, for the tough questioning that might come her way -- especially from Justice Antonin Scalia. "Roberts was just terrifically helpful in meeting with me and spending some time on the issue," Dubofsky said. "He seemed to be very fair-minded and very astute."

He may even have endorsed her cause. Who knows? After all, Roberts was not compelled to volunteer his time. Hogan & Hartson encourages pro bono work, but it hardly compels its lawyers to take cases that they might find morally or politically repugnant. Clearly, a lawyer who, say, agreed with the likes of the Rev. Pat Robertson or Rep. Tom DeLay (Rev., Rep., it's all the same nowadays) would not have taken the case. What's more, there's evidence to suggest that Roberts knew what he was doing. He made no mention of the case in the 83 pages he submitted to the Senate outlining his finances, pro bono work and other matters of interest. He knows the political peril of tolerance.

The White House and its allies, understandably alarmed at implications of moderation and enlightenment, were quick to suggest that Roberts was not, as some might slander him, a reasonable man. Dana Perino, a White House spokeswoman, pointed out that Roberts had spent less than 10 hours working on the gay rights case. She made it sound like a one-night stand, a youthful indiscretion for which no adult should be held accountable. Hell, we've all been young.

Jay Sekulow, a leader in the movement to make the high court intellectually indistinguishable from the Inquisition, rushed to explain Roberts to his constituency. This was something lawyers did. "A lot of people are commenting who don't know about Supreme Court practice," Sekulow said. "There's a high degree of collegiality." In other words, it meant nothing. Still, maybe Roberts could prove himself by beating up some gays.

Sean Rushton, director of the Committee for Justice, a right-wing group, characterized the revelation about Roberts's inexplicable pro bono work as "a red herring meant to divide the right." What he meant by this is not entirely clear unless, of course, evidence surfaces to show that Roberts ingested a mushroom and temporarily lost his mind. That might explain why he awkwardly found himself on the side of human rights.

As for Focus on the Family, possibly the premier organization in such matters, it portrayed Roberts as a mindless puppet of his law firm. "That's what lawyers do -- represent their firm's clients, whether they agree with what those clients stand for or not," it said in a statement. Of course, that's not the case at all. "Anyone who didn't want to work on a case for whatever matter, they didn't have to," said Walter A. Smith Jr., the Hogan & Hartson partner who ran the pro bono program. Oh.

The spectacle of conservative groups and the White House rushing to assure their constituencies that Roberts is not -- really and truly -- a tolerant man is both repulsive and absurd. In the end, this tethering of conservatism to the lost cause of homophobia will earn the rebuke of history. In the meantime, though, it puts Roberts on the spot. He might assert that he has been cruelly mischaracterized and, for benefit of career, renounce the work he had once done. But more likely his pro bono work speaks for itself. Until he says otherwise, on gay rights, he's out of the closet.

cohenr@washpost.com

© 2005 The Washington Post Company