A Brief on the Nominee

When President Bush’s lawyers made a list of potential nominees to the Supreme Court, they put John G. Roberts Jr. at the top.

The appeals court judge was seen as smart and cautious, conservative in his leanings, but not an outspoken ideologue prone to making brash pronouncements. And he was seen as a persuader, someone whose personable approach and intellect could make him a leader on the high court.

Roberts, 50, was also the clear favorite of Washington’s Republican legal establishment -- whether to succeed his old boss, Chief Justice William H. Rehnquist, or, as it turned out, to fill the seat left by the departure of Justice Sandra Day O’Connor.

Even leading Democratic lawyers, including former Clinton-era Solicitor General Seth Waxman and the late Lloyd Cutler, had endorsed his nomination to the U.S. Court of Appeals for the District of Columbia Circuit two years ago. They said he was a superb lawyer, a brilliant writer and an effective oral advocate.

His personal resume seems impeccably upright as well: a native of Buffalo, N.Y., who grew up in Indiana; captain of the high school football team; worked summers in a steel mill to help pay his way through college; top of his class at Harvard Law School.

He is described as low-key and assiduous; compared with some of the other candidates Bush was considering, he seems almost a little boring.

Roberts has always moved easily among crowds of differing political persuasions. His legal mentor at his Washington law firm was longtime Democratic lawyer E. Barrett Prettyman Jr. And the best man at his wedding was a personal injury lawyer, not typical company for a conservative.

The lawyer, Floridian Dean Colson, clerked for Rehnquist with Roberts.

“I just think he is as smart and as fine a lawyer as there is in America,” Colson said.

“I am impressed by the fact that some of the groups that are on the far right opposed him, and some on the far left opposed him. Maybe that means he is a really good choice,” Colson said.

Roberts’ wife, Jane, is also a Washington lawyer, and they have two children, Jack, 4, and Josie, 5. Colson, who said the couple met on a blind date, described Roberts as “a totally regular guy,” adding that “there’s no one more fun to watch a ballgame with or have pizza and a beer with.”

Though liberal interest groups have been determined to fight a conservative nominee, Roberts might not give them much of a target.

He has been on the U.S. appellate court in Washington for only two years, and he has not written highly controversial decisions in that time. Nor has he written inflammatory law review articles or newspaper op-ed pieces, the kind that caused problems for earlier nominees such as Robert H. Bork and Clarence Thomas.

But his frequent appearances before the high court have already earned him an unusual degree of respect among the justices, colleagues say, and his style is personable and diplomatic.

“He is not the kind of person who will deal with his colleagues through footnotes, through written memoranda or e-mail,” said Pepperdine University law professor Douglas Kmiec, who worked with Roberts in the Reagan and first Bush administrations.

“John Roberts’ style is to come to your office and say, ‘I understand you disagree with me; please tell me why,’ and then listen in rapt attention to your position -- not necessarily agreeing but letting you know he has fully considered every aspect of your argument. That type of personality on the Supreme Court is rare.... He can bring votes over when they are close.”

Roberts is likely to be attacked less for his writings on the appeals court than for his work as a lawyer in past Republican administrations.

While an aide to then-Solicitor General Kenneth W. Starr, he signed a Justice Department brief that urged the Supreme Court to uphold government restrictions on advice that family planning clinics could give to women seeking abortions, and which argued that Roe vs. Wade had been “wrongly decided.”

Roberts’ supporters say he was adopting the then-prevailing view of his client, which did not necessarily reflect his own thinking about the law, and they note that Roberts was among half a dozen lawyers who wrote the position.

He subsequently attempted to distance himself from the abortion brief. Asked about his beliefs during his 2003 Senate confirmation hearing, he replied that Roe was “the settled law of the land.”

“There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent,” he said.

But his conservative instincts can be gleaned from a few public remarks. At the end of the 2000 Supreme Court term, Roberts, then in private practice, was interviewed by the Baltimore Sun.

“The conventional wisdom is that this is a conservative court,” he said. “We have to take that more skeptically. On the three issues the public was most interested in -- school prayer, abortion and Miranda rights -- the conservatives lost on all.”

Referring to a decision overturning a law that sought to force cable TV stations to restrict the broadcast of sexually explicit materials to the late-night hours, Roberts said, “I don’t know how you can call a court conservative when it upholds the Playboy Channel’s right to broadcast its kind of programs.”

After arriving in Washington in the 1980s, Roberts clerked at the Supreme Court for then-Associate Justice Rehnquist. If confirmed to the court, he will be the first former clerk to serve with the justice who had employed him.

He also worked as a lawyer in the Reagan White House and at the Justice Department under President George H.W. Bush.

Roberts is a popular figure in Republican legal circles in Washington and is a member of the conservative Federalist Society. He helped Republicans with the legal work arising from the Florida presidential election recount in 2000.

He was 37 in 1992 when the first President Bush nominated him to the U.S. Court of Appeals in Washington. His nomination languished until President Clinton won the presidency in the fall, and the Democratic-controlled Senate never acted.

Roberts began a lucrative career as a lawyer at the Washington law firm Hogan & Hartson. He argued often before the Supreme Court, and not always in favor of causes that would warm the hearts of conservatives.

Three years ago, for example, the court took up the case of 700 families who had bought plots of land near Lake Tahoe. Before they could build homes, the Lake Tahoe planning agency imposed a moratorium on all new building.

Officials said they wanted to protect the crystal-clear waters of the lake from overdevelopment. The homeowners sued and sought compensation for the property rights they had lost.

Roberts argued the case on behalf of the Lake Tahoe planning agency and said the government needed the power to regulate property in the public interest.

He won a 6-3 ruling from the high court in a decision that was condemned by property rights advocates.

Roberts then became one of President Bush’s first judicial nominees. And while the Senate Judiciary Committee took its time in confirming him, he won a 16-3 endorsement from the often-bitterly divided panel in 2003.

He was confirmed unanimously by the full Senate.

In his short tenure on the appellate court, he has sided regularly with the Bush administration.

For example, he voted to throw out a nearly $1-billion legal verdict won by 17 former American prisoners of war who said they were tortured and abused by Iraq after their capture during the 1991 Persian Gulf War.

Bush and his legal advisors had intervened in the case to argue that because Iraq was no longer a terrorist state, the former POWs had no right to claim damages from Iraq. Roberts agreed, and he joined two other judges in a ruling that threw out the entire suit.

Last week, Roberts was one of three judges on the same appeals court that upheld the Pentagon’s policy of giving the detainees at Guantanamo Bay, Cuba, only a brief hearing before a military judge.

Perhaps the best-known of his writings was an opinion last year in which he held that a 12-year-old girl could not file a civil suit against the Washington transit system after she was arrested for eating a French fry on a Metro train.

“No one is very happy about the events that led to this litigation,” Roberts wrote, ultimately concluding that the girl’s rights were not violated by the arrest.

By adding one more conservative vote to the Supreme Court, Roberts could move the law to the right on several critical issues other than abortion.

Justice O’Connor has proved to be the swing vote in upholding the separation of church and state, affirmative action and campaign finance reform, among other issues.

Roberts has no clear track record in these areas, but if he is who conservatives think he is, the high court would take new positions on public displays of the Ten Commandments, the use of race as an admission factor in public colleges, and the McCain-Feingold Act on campaign reform.