The Reaction: A modest judge: John Roberts, gay rights, and legal precedent

With Joe away on tour -- he's in Wyoming today -- I've been posting over at The Moderate Voice this evening. But I also want to cross-post back here at The Reaction. Here's one on John Roberts, with links to my previous posts on Bush's Supreme Court nominee:

I'm not above admitting that my views change -- or, more specifically, that I modify them as I learn more -- and I seem to be warming more and more to Supreme Court nominee John Roberts. When he was first nominated, I called him "a right wing radical" and I argued that his nomination was "clearly for the base" (see here). A day later, having digested the pick and gotten over my wishful thinking that Bush would tap more of a moderate, I admitted that I was "not terribly outraged," that Roberts might "turn out to be an excellent justice," and that, as a balancing act between moderates and conservatives, "Roberts's nomination is something of a master-stroke" (see here).

To be sure, there are many on the left who will never warm to Roberts -- and, indeed, who wouldn't have warmed to any Bush pick (even Gonzales would have been beyond the pale, given his excessive partisanship and, oh, the torture thing. For example, Armando at Daily Kos worried recently that Roberts could vote against the right to privacy, specifically against the rights to abortion and contraception. It hardly matters that Roberts has stated that he intends to uphold settled law (Democrats are skeptical).

In his first response to Senate questions, Roberts showed that he is hardly a radical (unless he's lying -- for now, I'll give him the benefit of the doubt and believe what he says).

According to the Times (see here):

In his first written response to questions from the lawmakers who will review his nomination to the Supreme Court, Judge John G. Roberts Jr. told the Senate Judiciary Committee on Tuesday that judges must possess "a degree of modesty and humility," must be respectful of legal precedent and must be willing to change their minds.

The remarks, contained in a brief essay on judicial activism, expand on private conversations Judge Roberts has had with senators, in which he has said he places a high emphasis on "'modesty" and "stability."

The essay, which provides the public the first glimpse of Judge Roberts's philosophy in his own words, was part of his response to a wide-ranging questionnaire the Senate Judiciary Committee sent him a week ago. In it, the nominee seeks to cast himself as a proponent of judicial restraint, a quality prized by senators at a time when conservative critics of the judiciary are bemoaning activist judges. "

Judges must be constantly aware that their role, while important, is limited," Judge Roberts wrote. "They do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law."

Roberts's response hardly inspires fear. Although liberals might prefer an activist of their own -- activists can come from anywhere on the political spectrum -- Roberts seems to be an advocate of judicial restraint, of judging according to the law, not legislating from the bench. Clearly, he's no Scalia (although it's not clear what kind of justice he'd be -- who could have predicted, say, Souter's stunning shift to the left?).

Well, now there's more. Although the bloggers at Daily Kos continue to find anything they can to bring him down (and seem, in the process, to be grasping at straws -- although I admire their passion and support them on certain other issues), it has come out that "Roberts worked behind the scenes for gay rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people from discrimination because of their sexual orientation":

Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay rights activists as part of his law firm's pro bono work. He did not write the legal briefs or argue the case before the high court, but he was instrumental in reviewing filings and preparing oral arguments, according to several lawyers intimately involved in the case.

Gay rights activists at the time described the court's 6-3 ruling as the movement's most important legal victory. The dissenting justices were those to whom Roberts is frequently likened for their conservative ideology: Chief Justice William H. Rehnquist, Antonin Scalia and Clarence Thomas.

Roberts' work on behalf of gay rights activists, whose cause is anathema to many conservatives, appears to illustrate his allegiance to the credo of the legal profession: to zealously represent the interests of the client, whoever it might be.

There is no other record of Roberts being involved in gay rights cases that would suggest his position on such issues. He has stressed, however, that a client's views are not necessarily shared by the lawyer who argues on his or her behalf.

The lawyer who asked for Roberts' help on the case, Walter A. Smith Jr., then head of the pro bono department at Hogan & Hartson, said Roberts didn't hesitate. "He said, 'Let's do it.' And it's illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job."

To repeat, the three justices who dissented (and hence who disagreed with Roberts) were Rehnquist, Scalia, and Thomas, the conservative triumvirate on the Court.

And that's not all:

Roberts personally handled two pro bono cases.

In the first, Roberts was asked by Rehnquist — for whom he previously had been a clerk — to represent a man who had been convicted of Medicaid fraud, sentenced to prison and fined $5,000. The federal government also had filed a civil suit in the case and won a $130,000 judgment.

In U.S. vs. Halper, Roberts' first appearance before the high court, he argued that adding a civil penalty to a criminal one was double jeopardy and therefore unconstitutional.

In 1989, the court agreed unanimously. Eight years later the court reversed itself, again 9 to 0.

The second case was a Washington, D.C., welfare case that involved about 1,000 residents who lost benefits when the city cut programs amid a budget crisis.

Roberts, representing homeless people and others who could not work because of illness or injuries, argued before an appellate court that the city had erred in not first formally notifying recipients about the change in benefits.

The court ruled against him in December 1995 in one of Roberts' few appellate losses.

According to others who worked on the case, Roberts asked the court to reconsider, then appealed to the Supreme Court. The high court declined to hear the case.

"Mr. Roberts was essentially the principal counsel," recalled R. Scott McNeilly, a staff lawyer with the Washington Legal Clinic for the Homeless. "He was very involved."

When the welfare recipients lost in the courts, McNeilly said, most "were put out on the streets. They lost the money they were using to take the bus to see a social worker or money they were paying to a friend to sleep on his couch."

In the questionnaire, Roberts described them as "the neediest people" in Washington.

Not bad, eh?

Look, I'm not saying he's perfect, and he's certainly a more conservative nominee than I would have liked to see. But his pro bono work and his stated commitment to settled law and precedent indicate that he's not about to destroy America's legal fabric (or the liberal state) in the name of some pre-conceived political ideology based on, say, some radical understanding of "first principles".

If he respects the law and treats each case according to its merits, well, that wouldn't be so bad. In fact, he could very well turn out to be quite a surprise. Even to liberals and others who now oppose him.

For more, see: