WASHINGTON — Judge John Roberts remains an enigma.
President Bush nominated him to serve on the Supreme Court in July. Since then, a great volume of his memoranda and other writings have been released. But questions remain about his personal and judicial view.
Despite their misgivings about Roberts, Democrats have failed to find anything in his writings or personal life that will decisively sink his nomination. After weeks of discussion and examination of his record on the appellate bench and in the Reagan and first Bush administrations, the common wisdom in Washington remains that Roberts will sail through the Senate without strenuous opposition — perhaps with as many as 70 votes.
Roberts even dodged another potential source of controversy Aug. 17 when the American Bar Association rated him “well qualified” to serve on the Supreme Court.
But pro-family voices have their own concerns about this soft-spoken nominee, even though they continue to stand by him almost universally. Specifically, they look nervously upon two cases with which Roberts assisted while serving at the prestigious law firm of Hogan and Hartson.
One of the cases was Romer v. Evans, a homosexual-rights case that Roberts’ firm took on pro bono.
In that 1996 case, the U.S. Supreme Court struck down Colorado's Constitutional Amendment 2, which voters had approved in a referendum four years earlier. The amendment prevented the state and municipal governments there from conferring any special “minority status, quota preferences, protected status or claim of discrimination” upon anyone due to “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.”
Roberts helped prepare the Romer case for the side that ultimately prevailed — the side that wanted to give homosexuality a special status. He played devil's advocate for his colleagues at Hogan and Hartson who were handling the case. Providing fewer than 10 hours of legal work, he made the arguments against the case, and posed questions that one might expect pro-life justices such as Antonin Scalia to ask during oral arguments.
Roberts played a similar role in the 1999 Supreme Court case U.S. v. Playboy, in which the Supreme Court struck down laws requiring that cable pornography be scrambled during hours when children were likely to see it on television. Roberts also attended a 1999 meeting in the solicitor general's office on behalf of Playboy Entertainment, which was a paying client of his firm.
Steve Schmidt, a spokesman for the White House, refused to comment for the record on the controversy. The White House has stated previously that Roberts was in the habit of agreeing to help anyone at his law firm who asked for help on a pro bono case involving appellate jurisprudence. Roberts was the head of his firm's Appellate Practice Group.
Despite these cases, pro-family voices have largely remained on Roberts’ side. “The Senator is not terribly concerned with that,” said John Hart, spokesman for Sen. Tom Coburn, R-Okla. Hart, who was speaking only of the Romer case, referred the Register to a statement Coburn had given on Aug. 9 to an Oklahoma newspaper.
“When you become a lawyer and say, ‘I am just a lawyer for those people I agree with’ — if you are, then you are not a very good lawyer,” Coburn had said. Coburn, vacationing during Congress's August recess, could not be reached for comment on the Playboy case.
The Committee for Justice, which has doggedly supported President Bush's judicial nominees through four years of entrenched Democratic opposition, continues to stand by Roberts, said Executive Director Sean Rushton. Rushton described Roberts’ involvement in helping the cases giving homosexuals special status and protecting pornography as a typical part of collegiality among appellate attorneys.
“It is really seen as a professional courtesy,” said Rushton. “It is not seen really as helping one side or the other side of the case. There's an overall commitment in the legal community from all political sides to improve the quality of appellate advocacy … so that when liberal advocates come before the court, they are well prepared to take questions from the conservative side, and vice versa.”
Dominican Father Brian Mullady, a moral theologian at Holy Apostles College & Seminary in Cromwell, Conn., explained that such cooperation by Roberts could potentially be an error if it amounts to “formal cooperation in evil.” He added, however, that it could be perfectly legitimate to help with such cases by simply providing the opposing arguments.
“Formal cooperation in evil is where you either actually approve of the evil that you are a part of or associated with, or you are actually participating in doing the deed,” said Mullady. “If the guy's preparing the brief, that's one thing. If he's just playing the devil's advocate, I would say that's not formal” cooperation.
The only pro-family group to publicly denounce Roberts is Public Advocate — a group that most of Washington had never heard of before last week. Eugene Delgaudio, the group's president and an elected supervisor in Loudon County, Va., said his group had rejected Roberts based on his participation in the Romer v. Evans case.
“How much damage do you allow an attorney to do to the American family without drawing the line and saying, ‘that's just his professional courtesy’? How many innocent people are hurt? Where do you draw that line?”
He said his group will continue to question Roberts’ appropriateness for the Supreme Court.
“Here we have someone working to undo state rights, to undo a popular referendum in Colorado, he said. “We're not going to stop because the White House says it's a small matter.”
Ann Coulter remains the only major conservative writer to oppose the Roberts nomination wholeheartedly. Asked about Roberts's cooperation in the Romer and Playboy cases, Coulter told the Register, “It's not his strongest point.”
Confirmation hearings for Roberts have been scheduled to begin Sept. 6 before the Senate Judiciary Committee.
David Freddoso is based in Washington, D.C.