Judge Roberts’ View From the Bench

Reaching decisions as a judge is not as easy as he thought it would be, Supreme Court nominee John G. Roberts Jr. told law students this year. Before coming to a final opinion, he said, he often goes back and forth and finds himself on several sides of an issue.

Since being chosen by President Bush for the high court, Roberts has adopted the traditional nominee’s posture: saying as little as possible about his personal views and experiences.

That has left Democrats and Republicans wondering what kind of justice he would be -- one who is ideological and predictable, such as Justice Antonin Scalia, or a potential swing vote, such as Sandra Day O’Connor, whom he would replace if confirmed by the Senate.

In February, in what was apparently his last public address before he began to be vetted as a possible nominee, Roberts gave a speech to students at Wake Forest University in Winston-Salem, N.C., that is likely to provide fodder for the debate.

Roberts painted a picture of his work on the bench in which he seemed less doctrinaire than some of his conservative supporters had hoped and some of his liberal detractors had feared.

“I’ve found that deciding cases was a lot harder than I thought it would be,” said Roberts, who was sworn in as a federal appellate judge two years ago.

“I kind of thought that in most of the cases that it would be pretty obvious ... that this person should lose, this person should win, and you’d spend most of your time writing the opinions,” he said. “I’ve found that I have to spend far more time than I thought I would just getting to that first step -- what the right answer should be.”

The Los Angeles Times obtained a videotape of Roberts’ speech, which was delivered Feb. 25. A copy of the tape is among material under review by the Senate Judiciary Committee, which is preparing for Roberts’ confirmation hearings next month.

Throughout his remarks, which included a question-and-answer session, Roberts displayed a relaxed manner and an easy wit. When asked about rumors that he might be considered for the Supreme Court, he parried: “I think that’s one of those areas where I’ll develop judicial lockjaw.”

Before nominating Roberts last month, Bush had said he would choose a judge in the mold of Scalia and Justice Clarence Thomas, the court’s two most reliable conservatives.

But when a student asked Roberts to name his favorite justices, Scalia and Thomas were not on the list. Roberts reached back in history, praising Robert Jackson for his writings and Felix Frankfurter and John Marshall Harlan for their “analytical clarity.” He said he also admired the “collegiality” of William J. Brennan and the current chief justice, William H. Rehnquist, for whom he once clerked.

Those answers straddle the court’s political divides: Jackson and Frankfurter were nominated by President Franklin D. Roosevelt, Harlan and Brennan by President Eisenhower and Rehnquist by President Nixon.

Collegiality was a theme Roberts returned to several times. He emphasized that the collegial process of reading, questioning, debating and writing opinions often led judges to rulings they did not anticipate.

“The decisional process is very fluid,” he said. “It is not at all unusual in my own experience to have one view of the case when you finish reading the briefs, a different view of the case when you sit down and debate it with your clerks, another view of the case after oral arguments, and you’re back again at a different view after the conference [with other judges]. Then as you go through the writing process, you come up with either the original view, a third view [or] the second view.

“Each stage, you hope, gets you closer and closer to a correct view,” he said. “But the point is that you don’t lock yourself in at any stage of the process.”

He cited Frankfurter as saying that judges didn’t change their character or history when they donned their robes. But because of the deliberative process, Roberts said, a final ruling is “not governed by their prior experience and biases.”

Roberts told the students that as a judge, he was developing a distaste for strident rhetoric. Ninety-nine percent of the briefs he reads, he said, say that “clearly” or “obviously” their position is correct and the opposite side is wrong.

“No amount of adverbs [will] prevent a judge from looking at the other side’s briefs,” Roberts said.

“If you come in and say: ‘This is a tough case, judge. You’re going to have a tough time deciding it,’ the first reaction of the judge is going to be: ‘At last, there is somebody who appreciates what a tough job I have,’ ” Roberts said to laughter from the audience. “And you’ve made an ally, as opposed to an adversary, and it makes all the difference in the world.”

The bottom line, Roberts said, is that it’s a lot easier to take positions as a lawyer than as a judge.

“You know what side you want to take when you’re a lawyer,” Roberts said. “But as a judge, you do have to decide. And I found that a bit of a shift that was hard to take.”

Roberts offered the students one self-deprecating story about his transition from lawyer to judge. And it suggested that if he was confirmed by the Senate and sworn in this fall as a justice, he would be content to take a backseat role to the other justices, at least initially.

In deciding his first case as a judge, Roberts said, he arrived at the conference with the two other judges expecting to follow their lead.

“I’d been prepared for at least the first few months to listen and say, ‘Sounds fine to me,’ ‘Whatever you two want is fine with me,’ ” Roberts said.

Instead, the two justices told him that it was the practice on the U.S. Court of Appeals for the District of Columbia Circuit for the junior justice to lead the discussion.

“Talk about your pop quiz,” he said.