Judge Roberts’ Legal Record
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RAY SUAREZ: John Roberts spent a third day meeting with the senators who will decide his nomination, starting with Dick Durbin of Illinois. He was one of only three Judiciary Committee Democrats to vote against Roberts’ nomination to the D.C. Federal Court of Appeals.
SEN. RICHARD DURBIN: I think he was evasive and that’s why I didn’t support his nomination for the District Court of Appeals. I asked some questions that I thought were pretty easy questions. If you believe in strict constructionism, was Brown versus the Board of Education a strict constructionist decision? No, it clearly wasn’t, but he wouldn’t answer the question.
RAY SUAREZ: But Durbin added that Roberts will have another chance in September when the hearings are likely to begin.
SEN. RICHARD DURBIN: I said to Judge Roberts as he came in, the slate’s clean. As far as I’m concerned, I want to sit down and get to know you now. I don’t feel like I did during this earlier process.
RAY SUAREZ: Judge Roberts also met with the other two dissenting Democrats this week: Ted Kennedy of Massachusetts, who shared images from his past with the nominee, and with New York’s Chuck Schumer, who gave Roberts a list of more than 60 questions for him to consider.
SEN. CHARLES SCHUMER: This is not a game of gotcha. This is a game to figure out how somebody thinks and what their judicial philosophy is and what their method of legal reasoning is, and he doesn’t have to answer every one of those questions to get an idea.
RAY SUAREZ: Overall, Roberts’ many meetings across the Capital this week seemed to go smoothly, at least in front of the teams of media that tracked his every move.
SEN. BILL FRIST: He is obviously an outstanding Supreme Court nominee. He is the best of the best legal minds in America.
SEN. CHUCK GRASSLEY: I know that you’ve got fine credentials for the work that you’ve been selected to do.
JOHN ROBERTS: I have a great deal of respect for the constitutional role of the Senate in this process, and I’m looking forward to that very much.
RAY SUAREZ: And members of the Gang of 14, who’ve agreed to limit the threat of judicial filibusters, said any extraordinary circumstances, which could break their agreement, weren’t apparent. Connecticut Democrat Joseph Lieberman:
SEN. JOSEPH LIEBERMAN: There was also a consensus that we’re in a lot better position today than we might have been; that this is a credible nominee and not one that, as far as we know now, has a record that in any sense could be described as extremist.
RAY SUAREZ: Judge Roberts is scheduled to continue his consultations with senators next week.
RAY SUAREZ: For insight into Judge Roberts’ record as solicitor general, a private lawyer, and a federal appeals court judge we turn to three legal experts: Shannen Coffin is a former deputy assistant attorney general and a partner at the Washington law firm Steptoe & Johnson. Jeffrey Rosen is a professor of law at George Washington University Law School and legal affairs editor at the New Republic and NewsHour regular Jan Crawford Greenburg of the Chicago Tribune joins us once again.
And, Jan, right after law school, tell us what John Roberts did. He headed right into a Washington legal life, didn’t he?
JAN CRAWFORD GREENBURG: He did. He had a clerkship in New York in a federal appeals court with a very distinguished judge that he has said was a mentor to him, and then he, after that clerkship he came down to Washington to clerk for then Justice William Rehnquist, and at that the end of that year in the Supreme Court, he went into the government.
He worked in the Reagan administration, first as an assistant to the attorney general, and then he went over to the White House counsel’s office, where he spent a few years advising the president in the executive.
RAY SUAREZ: In his twenties, advising in a legal way the Reagan administration.
JAN CRAWFORD GREENBURG: That’s exactly right, and tackling any number of significant issues that the administration would confront.
RAY SUAREZ: Well, from the work, Shannen Coffin, that John Roberts did in that early stage in his career, taking a look at some of the most contentious issues of the day, what can you tell about this young lawyer?
SHANNEN COFFIN: Well, there’s nothing like learning at the feet of legal giants and Judge Friendly and now Chief Justice Rehnquist certainly can be categorized as that. So, you know, in a young lawyer’s formative years to have that sort of guidance means that John Roberts got the foundation of a terrific legal career and would have the tools to be able to tackle the really tough issues that the Reagan administration faced.
RAY SUAREZ: Was he asked to look at the law and explain the law on some things that show us his own mind, or as it was then?
SHANNEN COFFIN: Well, I think, I think that’s probably right. The job of an associate White House counsel and assistant White House counsel is to tackle countless number of issues that come through the White House and give legal advice to the White House counsel and eventually to the president.
And the folks that I knew in this administration when I was working at DOJ were just flooded with issues from all sorts of departments and all sorts of problems that the president was facing, from whether, you know, whether in this administration whether a Web site was violating copyrights that dealt with the presidency to really serious issues of national defense. And I mean you can’t help but reflect on your views of analyzing the law when you do that.
RAY SUAREZ: What stands out for you, Professor Rosen?
JEFFREY ROSEN: Well, the most controversial parts of his service at the White House and in Justice will be the briefs that he signed as a deputy solicitor general, and in particular liberal groups are very upset about a brief in which he called for Roe v. Wade to be overturned, had a footnote to that effect. He also signed a brief calling for graduation prayer to be recognized.
Now, frankly, I don’t think it’s fair to hold John Roberts accountable for the briefs that he signed as deputy solicitor general. He was, after all, defending the position of the Bush administration, which was his job. So more revealing, I think, of his actual views are probably the legal memos he wrote in the White House counsel’s office, where you get a bit of that dry sarcasm that really shows more about the man probably than the briefs that he signed.
RAY SUAREZ: Well, Shannen Coffin, what’s the difference between the two? What’s the difference between asking a counsel for his legal advice and telling the deputy solicitor general to come up with a legal rationale for one or another piece of administration policy?
SHANNEN COFFIN: Well, there is a difference; it’s a subtle distinction. In court, you’re an advocate for the president of the United States. When I stood up for the administration as a Department of Justice lawyer, I wasn’t arguing what I believed. I was arguing the law in order to win a case for the president of the United States. So if you take, for example, the Ruff v. Sullivan case, which Professor Rosen mentioned, first of all, two sentences in a brief that dealt with Roe v. Wade doesn’t tell you much about John Roberts’ legal philosophy, and also, you know, the brief only recited what the administration had said in five prior cases.
So I don’t think, you know, I think Professor Rosen is right; that doesn’t tell you anything about John Roberts’ thinking. Legal analysis, you know, as a White House counsel employee you’re going to be asked to analyze various issues, and your approach to the law is certainly going to come out in the way you analyze a case just like a young lawyer at a law firm would analyze an issue. So some of the thinking, certainly, as Professor Rosen mentioned, the humor and wit of John Roberts certainly came through. So you knew something about the person, I think, perhaps not necessarily too much about their legal or their political philosophy, but certainly something about the person.
RAY SUAREZ: Well, Jan, in 1993, the first Bush administration leaves Washington and John Roberts leaves government. What does he go on to do?
JAN CRAWFORD GREENBURG: Well he did, but before that, the first President Bush actually nominated John Roberts to the federal appeals court here, and his nomination, Democrats controlled the Judiciary Committee in the Senate that time so his nomination never made it through the committee.
So at that point he left the government and went into private practice at a law firm here in Washington, Hogan & Hartson, where he continued representing clients, this time generally paying clients, as opposed to the United States government, before the Supreme Court, as he had done in the solicitor general’s office. Of course, the solicitor general is representing the United States generally in the Supreme Court.
Now he’s in the Supreme Court representing paying clients and some pro bono clients, for free, but that is where he really solidified his reputation as one of the finest lawyers to appear of his generation before the Supreme Court. People would say that it was just a joy to watch him stand there before the Justices and make his presentation at the Justices. And I’ve seen him argue many times. He’s clearly so engaged in his argument, so respectful of his views and insight, really pressing him on the legal issues to see his analysis and explanation of the law.
RAY SUAREZ: Well, Professor Rosen, a minute ago you talked about how it might not be that fair to take a look at his briefs written as the deputy solicitor general to try to find the mind of the man. Is it fair to look at his work standing before the appellate bar?
JEFFREY ROSEN: It is because his works standing before the appellate bar is distinguished by something interesting. He represented Democrats as well as Republicans, and he took pride in it. It’s funny, not all Washington advocates have this distinction.
Ted Olsen, for example, the former solicitor general, a very distinguished lawyer, but he tended to represent more movement conservatives. Roberts was different; he argued for and against affirmative action. He defended environmentalists in defending regulations at Lake Tahoe against the claims of property owners. The Democratic attorneys general hired him to represent their views in a Microsoft case.
And I have the sense that Roberts is proud of his ability to argue the case round or argue it flat, as the lawyers say. He doesn’t see this as a sign of wishy-washiness. For him it’s a sign of the fact that people on both sides trusted him enough to be fair and neutral and to put forward the best case forward. And I would hope that his interest in engaging arguments on both sides, which was so evident in his career as an advocate, would be continued on the Supreme Court.
RAY SUAREZ: But Shannen Coffin, didn’t he also argue the kinds of cases that are still very much with the Supreme Court today: Having to do with discrimination, the Americans with Disabilities Act, Endangered Species Law and those kinds of things, that he’ll be called upon to decide as a judge?
SHANNEN COFFIN: Well, yeah, he argued a lot of cases because he was probably one of the two or three best Supreme Court lawyers in the country. But as Professor Rosen said, he argued a range of cases. He argued cases that, you know, were — where he was representing a corporation in labor disputes.
He argued a case where I filed an amicus brief against his position where he represented the state of Hawaii in defending what the Supreme Court determined was a race-based regime for voting that favored native Hawaiians over everyone else. Is that an issue that might come before the court again? Absolutely. I was testifying on the Hill about a bill this week that dealt with that very issue at the federal level. So, yeah, there’s no doubt that these issues are timeless.
RAY SUAREZ: Well, Jan, the second President Bush came to Washington and John Roberts got another run at the federal bench.
JAN CRAWFORD GREENBURG: That’s right. President Bush, the second President Bush, nominated him in 2001 as his kind of first group of nominees to the federal appeals court and John Roberts was confirmed in 2003. So we have some somewhat of a record now to look at from that period of service that he has now been on the D.C.-based federal appeals court.
But in looking at those cases, keep in mind that the D.C. Federal Appeals Court doesn’t get a lot of the hot-button controversial social issues that are so divisive and that have so deeply divided the Supreme Court. They take a lot of administrative law cases and cases that are important, very important, to the agencies. But thus far it’s been very difficult to determine how John Roberts would tackle some of those divisive issues. And it’s also important to keep in mind that an appeals court, if you’re an appeals court judge you’re doing a very different thing. You’re interpreting the law, applying the law than you would be doing on the Supreme Court.
RAY SUAREZ: Well, what stands out for you in the 20 months on the federal bench?
SHANNEN COFFIN: I think you start to get a picture of his judicial philosophy. And it’s one that starts with the letter of the law and hews very closely to it. There’s an example, a very good example, is a well-known case that dealt with Iraq prisoners of war, American prisoners of war in the first Gulf War that Saddam Hussein had taken prisoner.
They sought to sue Iraq but after the invasion of Iraq and the cessation of hostilities, the first cessation of hostilities, Congress passed a law that said the president had the power to set aside any law that applied to Iraq because they had supported terrorism. And two of his colleagues read that law rather narrowly so to say any law doesn’t mean any law. John read it to say any law means any law and said at the end of the day I take comfort in the language of the statute.
RAY SUAREZ: Professor Rosen?
JEFFREY ROSEN: A central question, especially for Senate Democrats, will be Roberts’ view of the scope of federal power and there are two very interesting opinions on this score: On the one hand, John Roberts said that Congress might not have the power to protect an endangered species. He called it the hapless toad because this toad might not move in interstate commerce. It sounds esoteric, but Democrats will focus on this opinion as the central window on to the possibility that he might broadly strike down all sorts of environmental regulations, health and safety regulations and so forth.
However in another case he took a broader view of congressional power and said that the Washington Metro could receive federal funds on the condition that it allow itself to be sued for discrimination. So, I know that Democrats will be trying to weigh these two cases but they’ll above all, be returning to the question that Jan identified: What is his view of stare decisis, of the validity of past presidents. And as Jan said, the fact that he applied precedents as a lower court judge doesn’t tell us whether he would do that as a Supreme Court Justice where he would be free to uphold or overturn decisions. And Democrats are going to be centrally focusing on that question.
RAY SUAREZ: Guests, thank you all.