Roberts’ Gay Bias Case Role Debated
Supporters and opponents of Supreme Court nominee John G. Roberts Jr. were caught off guard Thursday by news that he once had worked behind the scenes to help gay rights activists win a key case before the nation’s highest court.
Debate erupted on conservative and liberal websites, with partisans on both sides asking whether Roberts’ assistance was an aberration from his conservative record or a sign that his views might be less ideological than commonly thought.
Social conservatives expressed dismay about his participation in the case but said they were not convinced it amounted to an endorsement of gay rights, which they strongly opposed.
“While this is certainly not welcome news to those of us who advocate for traditional values, it is by no means a given that John Roberts’ personal views are reflected in his involvement in this case,” according to a statement by the political arm of Focus on the Family, a national organization of conservative Christians. “That’s what lawyers do -- represent their firm’s clients, whether they agree with what those clients stand for or not.”
Some of Roberts’ conservative supporters denounced the focus on the case as an effort to set Republicans against each other.
It “is a red herring meant to divide the right,” said Sean Rushton, executive director of the Committee for Justice, which helps coordinate strategy on judicial nominations for conservative groups.
Similarly, liberal activists said the revelation did not temper their concern that Roberts was less supportive of civil rights than they would like.
“A primary issue for us is to what degree, if any, this work reflects on the judicial philosophy Judge Roberts would bring to the Supreme Court,” said Kevin Cathcart, executive director of Lambda Legal, a major gay rights advocacy group.
Cathcart said his group remained concerned about Roberts’ “much more extensive advocacy of positions that we oppose.”
The White House sought to play down Roberts’ participation in the case, Romer vs. Evans. The Supreme Court in 1996 voted, 6 to 3, to strike down a voter-approved Colorado initiative that would have allowed employers and landlords to exclude gays from jobs and housing.
Roberts, then a lawyer at the Washington firm of Hogan & Hartson, helped gay rights activists prepare arguments against the initiative as part of his firm’s pro bono work.
Roberts did not mention his work on the case in responding to a Senate Judiciary Committee questionnaire that asked for examples of his pro bono work. Roberts’ involvement was first reported Wednesday by the Los Angeles Times.
Jean Dubofsky, the lead lawyer for gay rights activists challenging the Colorado initiative, told The Times that Roberts gave her “absolutely crucial” advice on how to argue the case before the Supreme Court.
White House spokeswoman Dana Perino said Roberts spent less than 10 hours on the case, compared with more than 200 hours he spent on two pro bono cases on which he was the lead counsel.
“There is clearly a difference” between his assistance in the Colorado case and his other pro bono work, Perino said.
Still, the revelation is awkward for both sides in the political battle over Roberts, now a judge on the U.S. Court of Appeals for the District of Columbia Circuit. President Bush nominated him in late July to succeed Justice Sandra Day O’Connor, who is retiring.
Some conservative activists have expressed concerns that Roberts may become an “unreliable” justice like David H. Souter or Anthony M. Kennedy, who were appointed by Republican presidents but who have not consistently supported conservative positions on the bench.
Roberts’ role in the Colorado case could fuel such worries.
But Grover Norquist, president of Americans for Tax Reform and a prominent GOP activist, said withdrawing support of Roberts over his participation in the case would be wrongheaded.
“The whole case that conservatives have been trying to make is that your personal feelings ought not to count” when you rule from the bench, Norquist said.
Some liberal activists consider Roberts to be more of a conservative ideologue than he acknowledges, citing in particular his work in the Reagan administration to limit school busing and other programs that sought to promote civil rights.
Roberts’ work on behalf of the gay activists would be inconsistent with that view of him.
“I’m interested in seeing his involvement in this [Colorado] case, but it doesn’t diminish our overall concern,” said Nan Aron, president of the liberal Alliance for Justice. “A picture is just beginning to emerge of his views, but it’s too early to make an overall assessment of his judicial philosophy.”
Norman J. Ornstein, a fellow at the American Enterprise Institute who is an expert on relations between the White House and Congress, said news of the Colorado case “reinforces the notion that the guy is a lawyer’s lawyer.”
He added: “To whatever degree people are trying to view Roberts as an ideologue whose first instinct is to take his worldview and impose it on whatever decision he’s taking -- this cuts against it.”
The result, Ornstein said, is that the controversy is likely to help Roberts win more support from moderates.
Roberts’ involvement in the case means he can “put himself in someone else’s shoes,” Ornstein said. “That is something that has distinguished the more careful and modest justices from the more expansive, wide-ranging and reckless ones.”
Many conservatives said they wanted to know more about why Roberts agreed to help in the case and whether he did so out of conviction or courtesy to a colleague.
Jay Sekulow, who is helping the administration promote Roberts’ nomination, said he had spent time Thursday explaining to concerned conservatives that lawyers often consulted with other lawyers on cases, regardless of their personal convictions.
“A lot of people are commenting who don’t know about Supreme Court practice. There’s a high degree of collegiality,” said Sekulow, who is chief counsel for the conservative American Center for Law and Justice.
Walter A. Smith Jr., the partner at Hogan & Hartson who ran the firm’s pro bono program, said that Roberts took part in the firm’s initial meeting to consider accepting the case and that his participation, as in all of the firm’s pro bono cases, was voluntary.
“Anyone who didn’t want to work on a case for whatever matter, they didn’t have to,” Smith said. “He was in on the takeoff and he was in on the landing and was helpful in both.”
From a lawyer’s point of view, Smith said, the Colorado case was more about equal protection than about gay rights.
He said the crucial issue for Roberts -- and eventually for the Supreme Court -- was whether the Colorado initiative took away ordinary rights and legal protections from a disadvantaged group, whether a sexual, racial or social minority.
“From a lawyer’s point of view, it presented an equal protection question,” Smith said. “Does such a law violate the equal protection clause of the Constitution? To that extent, it was not a gay rights issue.”