http://www.law.com/jsp/article.jsp?id=1108389946956D.C. Circuit Judge Gets on Supreme Court Short List
Tony Mauro
Legal Times
02-22-2005
John Roberts Jr., the newest judge on the U.S. Court of Appeals for the D.C. Circuit, was hanging back.
During a typical oral argument last week, colleague Harry Edwards fussed and fumed at the lawyers before him, while David Sentelle tossed out avuncular one-liners in his thick Southern drawl.
But Roberts, the third judge on the panel, was quiet. When he did speak finally, he was barely audible, politely asking a question or two, but never tipping his hand. To anyone watching for the first time, Roberts barely made an impression.
Suddenly, though, a lot of people are talking about this quiet judge, who just turned 50. The fickle spotlight on possible nominees to the Supreme Court if Chief Justice William Rehnquist departs has swung toward Roberts, and seems to be lingering.
In spite of Roberts' quiet manner, his credentials -- former Rehnquist law clerk, deputy solicitor general, top-flight practitioner at Hogan & Hartson and, in the estimation of some, the finest oral advocate before the high court in the last decade -- are speaking for him and winning fans. Add to that a brief 20-month tenure on the court that provides few targets for Democrats, and Roberts is emerging as a top candidate for the high court.
"He is well in the running, and he is superb," says C. Boyden Gray, partner at Wilmer Cutler Pickering Hale and Dorr and chairman of the Committee for Justice, which fights for President George W. Bush's judicial nominees.
"He's a great judge here, but I think we're going to lose him" to the Supreme Court, says a fellow D.C. Circuit judge who asked not to be named.
At a recent discussion before the local chapter of the Corporate Counsel Association, Roberts got considerable mention when a panel of Supreme Court experts was asked to handicap possible nominees.
"I think it will be John Roberts," said Latham & Watkins partner Maureen Mahoney, who is on some lists herself. "He has the brilliance, dedication and temperament to emerge as an intellectual leader of the Court," she said afterward.
Getting to this point has been a long and steady climb for Roberts, who was first nominated to the D.C. Circuit while he was in the Office of the Solicitor General in 1992. His nomination died, prompting Roberts to return to Hogan and build an esteemed and lucrative Supreme Court practice. He argued 39 cases before the Court in both the private and public sector, winning 25.
The current President Bush nominated him again in 2001, and again Roberts languished until finally winning unanimous confirmation in 2003. His pay cut is breathtaking: According to his financial disclosure form, Hogan paid Roberts just over $1 million in 2003, a combination of salary plus the payout representing a departing partner's ownership interest in the firm. As an appeals court judge, Roberts makes $171,800 a year.
ON THE SHORT LIST
With all the recent talk, Roberts has joined 4th Circuit Judges J. Michael Luttig and J. Harvie Wilkinson III and 10th Circuit Judge Michael McConnell on the short list of those who might get the nod, especially if President Bush replaces Rehnquist as chief justice with Antonin Scalia or Clarence Thomas.
But there is one way in which Roberts stands apart from -- and possibly ahead of -- the others. Luttig, with 13 years on the 4th Circuit, and Wilkinson with 20 have written enough opinions that it is easy to chart how conservative they are. McConnell has only two years on the 10th Circuit, but he has a provocative paper trail from his 17 years as a prolific conservative law school professor.
By contrast, Roberts, with 20 months on the D.C. Circuit, has few opinions or other writings that have attracted enemies. As a result, some conservatives have made unflattering comparisons between Roberts and Supreme Court Justice David Souter, whose short stint on the 1st Circuit before being appointed in 1990 by President George H.W. Bush failed to reveal Souter's moderate-to-liberal leanings on some issues.
Yet those who know Roberts say he, unlike Souter, is a reliable conservative who can be counted on to undermine if not immediately overturn liberal landmarks like abortion rights and affirmative action.
Indicators of his true stripes cited by friends include: clerking for Rehnquist, membership in the Federalist Society, laboring in the Ronald Reagan White House counsel's office and at the Justice Department into the Bush years, working with Kenneth Starr
among others, and even his lunchtime conversations at Hogan & Hartson. "He is as conservative as you can get," one friend puts it. In short, Roberts may combine the stealth appeal of Souter with the unwavering ideology of Scalia and Thomas.
But this take on Roberts puts some of his biggest boosters in a quandary. They praise Roberts as a brilliant, fair-minded lawyer with a perfect judicial temperament. But can that image as an open-minded jurist co-exist with also being viewed as a predictable conservative?
Florida personal injury lawyer Dean Colson of Colson Hicks Eidson in Coral Gables, who has known Roberts since they clerked for Rehnquist together in 1980, side-steps the question.
Colson calls Roberts "the smartest lawyer in America," someone who will "approach the cases with an intellectual viewpoint. I don't view him as having an agenda to promote."
But does that mean conservatives can't count on Roberts? "I don't know the answer as to how he would vote on specific issues," says Colson. "I would never ask him, and I hope he never tells anybody what he would do."
Mark Levin, author of "Men in Black," a new conservative critique of the Supreme Court, sees no conflict and is a fan of Roberts. "In the short period he has been on the court, John Roberts has shown he does not bring a personal agenda to his work. He follows the Constitution, and he is excellent."
E. Barrett Prettyman Jr., a longtime Roberts fan and lifelong Democrat who worked with him for years at Hogan, says that if anyone can be both judicious and predictable, Roberts can.
"He respects the Court greatly, and would not ignore precedent," says Prettyman. "But if there's a loophole or a distinguishing factor, he'd find it."
Roberts himself declined to comment for this story, but during his January 2003 Senate confirmation hearing, he made it clear that he prefers impartiality over predictability. For example, he criticized the press for identifying judges according to whether they were appointed by Democratic or Republican presidents.
"That gives so little credit to the work that they put into the case," he said. "They work very hard, and all of a sudden the report is, well, they just decided that way because of politics. That is a disservice to them."
NOT ALWAYS PREDICTABLE
So far on the D.C. Circuit, Roberts' votes have mainly fallen on the conservative side, but not always.
Last December, in United States v. Mellen, Roberts ruled in favor of a criminal defendant who challenged his sentence in a fraud case. Judge Karen LeCraft Henderson -- yes, an appointee of the first President Bush -- dissented.
In the July 2004 decision Barbour v. Washington Metropolitan Area Transit Authority (WMATA), Roberts joined Merrick Garland -- a Clinton appointee -- in deciding that sovereign immunity did not bar a D.C employee with bipolar disorder from suing the transit agency under federal laws barring discrimination against the disabled. Conservative Sentelle dissented.
But then there was another WMATA case -- known as the french fry case -- which some critics point to as a sign of a certain hard-heartedness in Roberts' decision making.
In the unanimous ruling last October in Hedgepeth v. WMATA, Roberts upheld the arrest, handcuffing and detention of a 12-year-old girl for eating a single french fry inside a D.C. Metrorail station. "No one is very happy about the events that led to this litigation," Roberts acknowledged in the decision, but he ruled that nothing the police did violated the girl's Fourth Amendment or Fifth Amendment rights.
Roberts also displayed what some viewed as insouciance toward arroyo toads in a 2003 case, Rancho Viejo v. Norton. Roberts wanted the full D.C. Circuit to reconsider a panel's decision that upheld a Fish and Wildlife Service regulation protecting the toads under the Endangered Species Act. Roberts said there could be no interstate commerce rationale for protecting the toad, which, he said, "for reasons of its own lives its entire life in California."
In another decision last June, Roberts went even further than his colleagues in supporting the Bush administration in a case that pitted the government against veterans of the first Gulf War. American soldiers captured and tortured by the Iraqi government during the first Gulf War sued the Iraqi government in U.S. court and won nearly $1 billion in damages at the district court level.
But once Saddam was toppled in 2003, the Bush administration wanted to protect the new Iraqi government from liability and intervened to block the award. Roberts, alone among the circuit judges who ruled with the government, said the federal courts did not even have jurisdiction to consider the victims' claim. An appeal is before the Supreme Court.
"These decisions are troubling in a lot of ways," says Elliot Mincberg of the liberal People for the American Way, a point person in any battle over Supreme Court nominees.
But Mincberg's criticism of Roberts may be muted somewhat by the fact that he worked with Roberts at Hogan years back and likes him personally. "He's a very smart lawyer and easy to work with, but there is no question he is very, very conservative," says Mincberg.
Another person who might otherwise be a critic of Roberts is a longtime friend. Georgetown University Law Center professor Richard Lazarus, an environmental law advocate, was a classmate of Roberts at Harvard Law School and roomed with him when they first came to Washington 25 years ago.
"John Roberts and I are very good friends, and I think very highly of him as a person, lawyer and judge," says Lazarus with care. "After that, I have to bow out."
Lazarus would not comment further, but other friends say the roots of Roberts' conservatism can be traced to his days as a Harvard undergraduate, toward the end of the Vietnam War. Seeing fellow students demonstrate in sympathy with Ho Chi Minh, one said, did not sit well with Roberts, who grew up in Indiana.
As unassuming as Roberts is, he also has a keen sense of humor, friends say. When Roberts was deputy solicitor general in 1990, he and Hogan friend Prettyman were adversaries in Lujan v. National Wildlife Federation, a case that turned out to be a landmark decision narrowing the doctrine of standing. Prettyman's federation clients claimed they had standing to challenge certain Interior Department land management decisions because they used nearby land for recreational purposes. Roberts argued that was not a specific enough injury to achieve standing.
Before the argument, Prettyman says, Roberts went out West to look over the public lands at issue in the case. "He sent me a postcard from out there," Prettyman recalls. "He wrote that he had looked and looked for my client, but couldn't find her."
As it turned out, neither could the Supreme Court. It ruled 5-4 that Prettyman's clients had no right to sue. Roberts' argument won the day.
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