Roberts and Role Differentiation

A story in today's L.A. Times is a nice follow-up to yesterday's post on how not to argue against a Supreme Court nominee.  My claim was that we take very seriously the claim by lawyers that they are able to put aside their personal moral beliefs when acting on behalf of a client, yet we tend to discount statements by judicial nominees that they are willing to decide cases impartially, despite their preexisting political views.  Today's L.A. Times piece provides an interesting bit of evidence in favor of Roberts's claim to be able to act impartially:  While a partner at Hogan & Hartson, he assisted, in a pro bono capacity, the lawyers challenging a Colorado initiative prohibiting local government bodies from enacting anti-discrimination ordinances on the basis of sexual orientation.  Although he did not write the briefs, he advised the plaintiffs' lead counsel, and helped moot the oral argument.  The plaintiffs' position was ultimately upheld in Romer v. Evans. 

The lesson of this episode is not that Roberts is pro-gay rights, and is likely to be acceptable to moderates and liberals for that reason, but that he takes seriously the ideal of professional neutrality often stated by lawyers.  As the article puts it:  "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."  Speaking as a liberal observer of the Roberts nomination, I can live with a conservative nominee who is likely to make a good faith effort to decide cases impartially as a judge.  In fact, I think that's the best anyone can hope for. 

Comments

[Dennis J. Tuchler]

I can't help but think that the commitment of free time by a busy lawyer indicates more than a non-partisan interest in difficult cases. There are plenty of intellectually interesting cases at Hogan and Hartson. That is, one does not enter into such an attorney-client relationship pro bono unless the lawyer thinks the cause is worthy of the lawyer's time and effort. Of course, it does not follow that Roberts is pro-gay-rights. On the other hand, his partisan participation indicate that there was something about that side of the case that was attractive to Roberts; perhaps a sense about what counts (should count?) as a minority group worthy of special protection under the 14th Amendment.

[David Giacalone]

Brad, The Catholic Church is not against civil rights for gay persons. The better test would be whether Roberts would work on a project that fights for gay marriage. That service would be against the direct teachings of the Church. Both Steve Bainbridge (who is an ardent, serious Catholic) and I (a former Catholic) believe that that there will be some cases in which Judge Roberts's decisions would be driven by his faith. Please see my post What if Roberts is a "Serious Catholic"? and the follow-up post responding to Prof. Bainbridge's take on the issue at http://blogs.law.harvard.edu/ethicalesq/2005/08/01#a4443 .

As for your main point, Catholic teachings do not allow for role differentiation. The most authoritative text on Catholic Participation in Political Life (penned by Cardinal Ratzinger, who is now Pope Benedict XVI) states:

"By its interventions in this area, the Church’s Magisterium does not wish to exercise political power or eliminate the freedom of opinion of Catholics regarding contingent questions. Instead, it intends – as is its proper function – to instruct and illuminate the consciences of the faithful, particularly those involved in political life, so that their actions may always serve the integral promotion of the human person and the common good. The social doctrine of the Church is not an intrusion into the government of individual countries. It is a question of the lay Catholic’s duty to be morally coherent, found within one’s conscience, which is one and indivisible. «There cannot be two parallel lives in their existence: on the one hand, the so-called ‘spiritual life’, with its values and demands; and on the other, the so-called ‘secular’ life, that is, life in a family, at work, in social responsibilities, in the responsibilities of public life and in culture. The branch, engrafted to the vine which is Christ, bears its fruit in every sphere of existence and activity. In fact, every area of the lay faithful’s lives, as different as they are, enters into the plan of God, who desires that these very areas be the ‘places in time’ where the love of Christ is revealed and realized for both the glory of the Father and service of others. Every activity, every situation, every precise responsibility – as, for example, skill and solidarity in work, love and dedication in the family and the education of children, service to society and public life and the promotion of truth in the area of culture – are the occasions ordained by providence for a ‘continuous exercise of faith, hope and charity’ (Apostolicam actuositatem, 4)».[25] Living and acting in conformity with one’s own conscience on questions of politics is not slavish acceptance of positions alien to politics or some kind of confessionalism, but rather the way in which Christians offer their concrete contribution so that, through political life, society will become more just and more consistent with the dignity of the human person."

See http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20021124_politica_en.html

[Scott Moss]

Dennis, I agree that Roberts' participation says... well, something -- at least that he's not Scalia or Thomas or Rehnquist. Could you imagine either of them, if they weren't judges, helping the gay rights side in Romer? Certainly not Scalia, who declared in his Buchanan-esque Romer dissent that we're in a "culture war."

But I think the limited nature of his participation -- less than 10 hours, I've heard -- makes it a very open question what he did. 8 or 9 hours is maybe just enough time to read some briefs, think of some questions, and have maybe two meetings. If I remember correctly that he was asked to pepper the lawyers with Scalia-like questions, then I easily could see Roberts having been brought in precisely because he's unfavorable to their side. It's somewhat to his credit that he was willing to help that side perpare for Scalia & company, but I also read that at the highest levels of the profession, Supreme Court lawyers are a collegial bunch who just help each other out when asked.

[Dennis J. Tuchler]

An entry on the Volokh Conspiracy of 8/8 tends to confirm Brad Wendell's analysis. A person then at Hogan and Hartson stated:

"John was building an appellate practice at our firm. And he wanted to be able to have the freedom to bring cases into the firm that were of interest to him. John therefore was open to being helpful to other partners and their clients. Pretty standard for a big law firm practice."

-- Mr. David Leitch, Former Partner with John Roberts at Hogan & Hartson (1987-1990, 1993-2001).

So, Roberts entered into the role of "friendly critic" and acted accordingly. Of course, he wasn't deciding anything. His role was almost academic, and he filled it. What he would do as judge, deciding the case, as opposed to auximiary advocate, setting out the best arguments on a side, is not plain. After all, if a case is ripe for Supreme Court review, it is either a matter of obvious error (e.g. In Re RMJ) or a case in which the sides' arguments are each substantial. The "right" answer does not come from an historian's investigation of precedents, or statutory or constitutional language. History and language are there to help both sides. A judge can't help but put some of herself/himself into the brew from which the judge draws his/her position. One such personal contribution might be that person's own view of the proper role of stare decisis in Supreme Court decision-making. That kind of contribution made Justice Souter look treacherous to many of those who backed his appointment to the Court.