July 22, 2005

• I am a member of the American Bar
  Association.  One of the benefits of membership is the receipt
  each week of the ABA eReport.  It has entertaining columns and
  interesting articles.  This week, of course, the lead article was
  about the new Supreme Court nominee.  Here, for your reading
  pleasure, is the text of the article, which I found to be interesting.

  JUDGING ROBERTS
  High Court Nominee’s Rep Ranges from ‘Lawyer’s Lawyer’ to ‘Superhottie’

  BY MOLLY McDONOUGH

  Divisive. Arch conservative. Well-liked. Rock star.

  These are all descriptions that could be used to characterize John
  Glover Roberts Jr., who on July 19 was nominated to the U.S. Supreme
  Court.

  So far, reactions to the nomination have been anywhere from laudatory
  to skeptical. Most consider his credentials impeccable. But his
  ideological meter will be hard to read because he hasn’t left much of a
  paper trail.

  Since Roberts has been on the bench for only 20 months, examining his jurisprudence may not be illuminating.

  Yet the ABA and plenty of interest groups, including the U.S. Chamber
  of Commerce and Lambda Legal, will give it their best shot.

  Even before President George W. Bush made his announcement Tuesday
  night, the ABA’s Standing Committee on the Federal Judiciary was
  prepared for the nomination.

  Chair Thomas Z. Hayward Jr. of Chicago busied himself organizing the
  committees that will conduct a nationwide peer review. Investigators
  will scour each judicial circuit, conducting confidential interviews
  about the judge’s integrity, professional competence and judicial
  temperament. Teams of law school professors have been assigned to
  examine Roberts’ written work, and a team of Supreme Court
  practitioners will do the same.

  This was done on a smaller scale when Roberts was nominated to the
  appellate court and ultimately rated "well-qualified" by the ABA. Each
  member of the standing committee will once again be asked to rate the
  nominee as either "well-qualified," "qualified" or "not qualified."

  Roberts has his special-interest detractors, but to many he is known as
  a "lawyer’s lawyer" who built a reputation as a top-tier appellate
  advocate before taking a seat on the federal appellate court in
  Washington, D.C.

  He’s a darling of the judiciary, court watchers and judicial
  fanatics—even earning the distinction on the popular blog Underneath
  Their Robes as one of the top five "male superhotties of the federal
  judiciary."

  "If the [Supreme Court] judges got to vote for John, it would be
  unanimous because they all think the world of him," says Richard
  Garnett, who clerked for Chief Justice William H. Rehnquist in 1996.

  Roberts clerked for Rehnquist, too, only 15 years earlier. (If
  Rehnquist remains on the court, it would be the first time a justice
  and his protégé sat together on the high court.) Garnett says Roberts
  set a standard that other clerks were expected to emulate.

  That may explain part of why he is well-liked at the court. But most of
  the admiration comes from his appellate advocacy. Roberts has argued
  nearly 40 cases before the Supreme Court.

  "When I was clerking, Roberts was one of the real marquee guys,"
  Garnett says. "All the clerks would sort of drop what they were doing
  to go watch him argue."

  Garnett says there hasn’t been a justice with such a strong appellate
  advocacy record since Thurgood Marshall, who spent three decades
  perfecting his appellate advocacy arguing primarily civil rights cases.

  "It was kind of like he was a rock star," Garnett says of Roberts,
  while acknowledging he may be biased because he’s "a Supreme Court law
  geek." Garnett adds that Roberts "was famous for his preparations. He
  was never lawyering on the fly."

  But Garnett is hardly Roberts’ only fan. When he was nominated to the
  U.S. Court of Appeals for the District of Columbia Circuit, a letter
  bearing 156 signatures from lawyers in the D.C. bar was sent to the
  Senate Judiciary Committee on his behalf. Signatories comprised a broad
  bipartisan group, including C. Boyden Gray, White House counsel to
  President George H.W. Bush; the late Lloyd Cutler, White House counsel
  to presidents Carter and Clinton; and Seth Waxman, Clinton’s solicitor
  general.

  Roberts was born Jan. 27, 1955, in Buffalo, N.Y. He moved to Northwest
  Indiana when he was in second grade after his father took a management
  job at Bethlehem Steel.

  No one seems prouder about Roberts’ nomination than La Lumiere School,
  the Catholic boarding school near LaPorte, Ind., where Roberts prepared
  for his distinguished Ivy League track record. The school’s Web site
  prominently features his photograph and biographical information about
  his academic, leadership and athletic distinctions. By the time he
  graduated at the top of his 25-member class in 1973, Roberts was
  co-captain of the football team, co-editor of the school paper and
  active in wrestling, drama and student council.

  Chicago plaintiffs lawyer Mark E. McNabola was a few years behind Roberts but remembers his reputation well.

  "When I got there, there was one name I heard over and over again about
  the person you should try to emulate. That was John Roberts," McNabola
  says.

  After excelling in prep school, Roberts went on to Harvard College
  where he took only three years to earn a degree in history. He stayed
  in Cambridge for law school, serving as managing editor of Harvard Law
  Review and graduating magna cum laude in 1979.

  He landed a clerkship with 2nd U.S. Circuit Court of Appeals Judge
  Henry Friendly then went on to clerk for then-associate Justice William
  H. Rehnquist in the 1980-1981 term. Roberts stayed in Washington,
  working first as a special assistant attorney general at the Justice
  Department, then as an associate counsel to President Reagan from 1982
  to 1986 before entering private practice. He returned to government
  work as a deputy solicitor general from 1989 to 1993.

  An early nomination by President George H.W. Bush to the U.S. Court of
  Appeals for the District of Columbia Circuit stalled in committee then
  died during the Clinton years. In the meantime, Roberts married fellow
  Washington, D.C., lawyer Jane Sullivan, also 50, and a partner at
  Pillsbury Winthrop. The couple has since adopted two children, Jack, 4,
  and Josie, 5.

  Roberts was back in private practice when President George W. Bush
  revived his nomination to the D.C. Circuit two years ago. This time,
  his nomination sailed through the committee by a 16-3 vote, and on May
  8, 2003, he was confirmed by the Senate by a unanimous vote.

  During his government service and while at his firm, Hogan &
  Hartson, Roberts built a reputation as a zealous advocate for his
  clients. Some of that advocacy is already haunting him. Critics point
  to the fact that Roberts signed onto an amicus brief in a 1991 Supreme
  Court abortion funding case, Rust v. Sullivan, 500 U.S. 173. Roberts
  will undoubtedly be questioned again about this statement in the brief:
  "We continue to believe that Roe was wrongly decided and should be
  overruled."

  But Craig Bradley, another Rehnquist clerk alumnus who got to know
  Roberts during law clerk reunions, says the fact that the brief states
  the Justice Department’s position at the time doesn’t say much about
  what Roberts thinks personally on the issue. "He was working in the
  Justice Department, and that was the Justice Department’s position,"
  Bradley says. "You either write the brief or quit."

  "He really doesn’t come across as an ideologue," adds Bradley, who
  teaches constitutional law at Indiana University School of
  Law-Bloomington.

  Bradley also points out that just because Roberts is a former Rehnquist
  clerk doesn’t mean he’s an ideological clone of Rehnquist.

  "It’s more likely than not that he’s pretty conservative," Bradley
  says. "But there’s conservative and there’s conservative. My hope will
  be that he will be in the mold of [Justice Sandra Day] O’Connor and
  conservatives who have concern for precedent. There’s no sign that he’s
  a right-wing firebrand."

  Pepperdine University law professor Douglas Kmiec says Roberts is "a
  welcoming personality" who ought to weather the confirmation process
  well.

  "It’s not going to be a Bork hearing, not a battle royale," Kmiec says.
  "I think John will be forthright where the office permits him to answer
  questions."

  ©2005 ABA Journal

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