Friday, August 05, 2005

Roberts And Romer: A Red Herring

When President George W. Bush first announced his choice to replace Sandra Day O'Connor, some dubbed him the "stealth" nominee because he supposedly had left so little in the way of a paper trail during the quarter-century he's been practicing law and more recently, sitting as a judge on the D.C. Circuit Court of Appeals. But information quickly worked its way to the surface, sometimes with the assistance of blog sites like Advance Indiana, that made it pretty clear that John Roberts was indeed very conservative in the style of his former boss and mentor, Chief Justice William Rehnquist, his close friend and mentor Justice Antonin Scalia and his fellow colleague from the Reagan-Bush administrations, Clarence Thomas.

Evidence of the extent of his conservative ideology came from testimonies of his close friends and colleagues who know him best and from his own writings, in which he placed himself to the right of more moderate conservatives, such as his former boss and Solicitor General, Theodore Olson. While his views on issues such as abortion, civil rights and church-state started to become more clear, his views on gay civil rights was much more elusive. Gay civil rights leaders lamented about the lack of information they had on Roberts' views, and were left only to analogize the views with whom he most closely identifies himself ideologically, such as Rehnquist and Scalia.

Conservatives of all stripes warmly embraced the nominee, assured that President Bush had not made the same mistake as his father by nominating a "stealth" candidate like Justice David Souter, who conservatives believe had sold them out by becoming one of the Court's most liberal members. But as the perception of Roberts as a hard-line conservative began to crystalize, Bush administration sources and supporters began dropping tid-bits of information to the media to cast doubt on Roberts' perception as a reliable conservative, perhaps fearful that Democrats might vote in lock-step against the nominee and even filibuster his nomination, an option still available under current Senate rules, if they thought he was going to vote like a Scalia or Thomas. But when supporters of Roberts planted a story in the Los Angeles Times crediting Roberts with a critical role in assisting a coalition of gay rights organizations in over-turning a Colorado law that discriminated against homosexuals, Karl Rove and company may have reached too far in their efforts to manipulate the public's perception of Roberts.

The Colorado law in question was challenged in the 1996 landmark Romer v. Evans case. Colorado voters enacted a statewide law by referendum which prohibited local units of government in the state from enacting local laws banning discrimination on the basis of a person's sexual orientation. The enactment of the statewide law had the effect of nullifying numerous local ordinances adopted by various communities. Aggrieved gays, lesbians and local municipalities appealed the constitutionality of the state law to the Supreme Court. The Court struck down the Colorado law on the basis that it deprived the state's gays and lesbians from their right to equal protection under the 14th Amendment. Justice Kennedy wrote the majority opinion for a 6-3 divided court, with Chief Justice Rehnquist and Justices Scalia and Thomas dissenting.

The story, originally reported by the Los Angeles Times yesterday, recounted Roberts role in helping a gay rights coalition, which was working to overturn the Colorado law, prepare their landmark case for oral argument before the Supreme Court. The Plaintiff's lead lawyer, Jean Dubofsky, sought the assistance of a conservative who could give her an "insider's road map" for what to expect from the Court's more conservative members according to the New York Times. Roberts spent about six hours of time helping Dubofsky prepare for the oral argument through the use of a moot court proceeding after he was requested to do so by one of his colleagues at his D.C. law firm of Hogan & Hartson. Roberts did not prepare the brief, participate in the argument or otherwise represent the plaintiffs in Romer v. Evans. Dubofsky said Roberts' assistance was most helpful.

Immediately upon hearing the news, supporters seized on this as evidence to suggest that Roberts is a fair and open-minded person who did not always tow the conservative line, just as they did with all the other little tid-bits the administration has been dropping into each news cycle to soften the public perception of Roberts. To the dismay of the administration, the news caught some on the Christian right off guard, raising new doubts in their minds about whether he will become another Souter as opposed to a Scalia or Thomas. Even Rush Limbaugh took to the airwaves during his daily broadcast to question what Roberts was doing advocating for gay civil rights. Similarly, some gay rights supporters were too quick to read more into the news than is warranted.

The truth is that Roberts' partipation in Romer v. Evans is nothing more than a red herring. Roberts' former law partner at Hogan & Harton, David Leitch, put it all into perspective during an interview with Fox News' Jim Angle today. Leitch explained that it was common practice for experienced appellate lawyers like Roberts to provide free advice to new advocates before the Court as part of the appellate bar's effort to improve the quality of advocacy before the Court. Leitch estimated that Roberts, who himself has argued dozens of cases before the Court and worked at the Court as a clerk to Rehnquist, had assisted more than a hundred appellate court lawyers in preparing their cases for oral argument. Leitch said that Roberts' assistance of the plaintiffs in Romer v. Evans should not be interpreted as a statement of his support for the position advocated by gay rights' groups.

In Advance Indiana's first analysis of Roberts' nomination, Roberts' membership in the Federalist Society was cited, among other things, of Roberts' strong conservative leanings. Within a couple of days, the Administration began contacting every major news media outlet, all of whom had reported on Roberts' membership in the organization, to advise them that their reports were wrong and that Roberts had never been a member of the organization. Of course, evidence to the contrary soon appeared, including a statement from the organization's Vice President, Leonard Leo, who recalled his role in recruiting Roberts to serve on the organization's steering committee. Nonetheless, Roberts clinged to the position that he had never been a member, and that he had never paid any dues to the organization, even though the organization acknowledged that payment of membership dues was not compulsory to participation in the organization. The group obtains most of its funding from the generous support of conservative foundations.

Judge Roberts this week returned a 67-page questionnaire detailing all of the work he has done as an attorney, including the cases he's argued before the Supreme Court and all pro bono work he has performed. Nowhere in the 67-page questionnaire did Roberts disclose to the Senate any role he performed in the landmark Romer v. Evans case. On the other hand, Roberts went to the trouble of devoting an entire paragraph of his response explaining that he was not a member of the Federalist Society. He did, however, acknowledge that he had participated in several of the organization's events, including serving as a moderator for one event. Advance Indiana's editor, Gary R. Welsh, is a former member of the organization. He attended three events sponsored by the organization, at Harvard, D.C. and Indianapolis. At all three events, a Federalist Society member(s) served as moderator. It is simply deceptive and disingenuous for Roberts to continue to painstakingly deny his membership in the organization. Fully, one-third of all judicial appointees by President Bush are members of the organization. Justices Scalia and Thomas proudly associate themselves with the group. Roberts lack of candor to the public does not serve him well.

Roberts has already had to amend the 67-page questionnaire after it was learned that he failed to disclose his prior participation as a lobbyist. Roberts lobbied in 1991 on behalf of the Cosmetics, Toiletries and Fragrances Association, involved an effort to stave off a regulatory change involving sunscreen. According to a news report on news, Roberts "suggested that he did not think of disclosing the information because the nature of the work — in which he met with lawyers at the federal Office of Management and Budget and the Food and Drug Administration— did not seem political." In a letter to Vermont Senator Patrick Leahy Roberts said, "My conversations with the government attorneys were focused on the prospect of litigation. Consequently, the question about lobbying on the questionnaire did not trigger a memory of these meetings."

It's time for Roberts and the Administration to end this never-ending game of deception in which it is engaged to make the public believe what it wants us to believe about Roberts' record. Let Roberts speak in his own words and tell us how he feels about issues like abortion, state-church, gay rights and other issues of importance in today's Supreme Court jurisprudence. Advance Indiana for one is not going to be fooled by the tranparent efforts of Roberts, the administration and his supporters to manipulate public opinion.

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