August 4, 2005

Roberts and gay rights pro bono work.

Supreme Court nominee John Roberts donated his legal work to the cause of gay rights, according to the L.A. Times:
Supreme Court nominee John G. Roberts Jr. worked behind the scenes for gay rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people from discrimination because of their sexual orientation.

Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay rights activists as part of his law firm's pro bono work. He did not write the legal briefs or argue the case before the high court, but he was instrumental in reviewing filings and preparing oral arguments, according to several lawyers intimately involved in the case.

Gay rights activists at the time described the court's 6-3 ruling as the movement's most important legal victory. The dissenting justices were those to whom Roberts is frequently likened for their conservative ideology: Chief Justice William H. Rehnquist, Antonin Scalia and Clarence Thomas.

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.

This is a case of donating his work, not just pursuing the interests of a paying client. But his firm was working on the case, and he was asked to help, supposedly, and didn't balk:
The lawyer who asked for Roberts' help on the case, Walter A. Smith Jr., then head of the pro bono department at Hogan & Hartson, said Roberts didn't hesitate. "He said, 'Let's do it.' And it's illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job."

So Roberts can still look like someone who dutifully performed whatever job was put in front of him -- if that's what you want to see.

Roberts did not mention his work on the case in his 67-page response to a Senate Judiciary Committee questionnaire, released Tuesday. The committee asked for "specific instances" in which he had performed pro bono work, how he had fulfilled those responsibilities, and the amount of time he had devoted to them.

Smith said the omission was probably just an oversight because Roberts was not the chief litigator in Romer vs. Evans, which struck down a voter-approved 1992 Colorado initiative that would have allowed employers and landlords to exclude gays from jobs and housing.

"John probably didn't recall [the case] because he didn't play as large a role in it as he did in others," Smith said Wednesday. "I'm sure John has a record somewhere of every case he ever argued, and Romer he did not argue. So he probably would have remembered it less."

I find this incredibly hard to believe. Romer v. Evans was a huge case. It wouldn't just slip your mind!

But I hasten to add that Romer presented very important issues about democratic processes and the relative power of state and local government. These issues transcended gay rights and might well have strongly engaged a person who did not care one way or the other about the gay rights movement.

Jean Dubofsky, lead lawyer for the gay rights activists and a former Colorado Supreme Court justice, said that when she came to Washington to prepare for the U.S. Supreme Court presentation, she immediately was referred to Roberts.

"Everybody said Roberts was one of the people I should talk to," Dubofsky said. "He has a better idea on how to make an effective argument to a court that is pretty conservative and hasn't been very receptive to gay rights."

She said he gave her advice in two areas that were "absolutely crucial."

"He said you have to be able to count and know where your votes are coming from. And the other was that you absolutely have to be on top of why and where and how the state court had ruled in this case," Dubofsky said.

She said Roberts served on a moot court panel as she prepared for oral arguments, with Roberts taking the role of a Scalia-like justice to pepper her with tough questions.
Read the whole article. I don't get the impression that Roberts hid this work in his answers to the Judiciary Committee. He simply talked generically about working on pro bono cases, and why should he forefront the cases where he was not the lead lawyer?

UPDATE: Malcontent read this post and characterized me as "hard right" and "flipping out." Maybe you'd be a little less of a malcontent if you read things a little more carefully before... flipping out.

16 comments:

R C Dean said...

I find this incredibly hard to believe. Romer v. Evans was a huge case. It wouldn't just slip your mind!

Oh, I dunno. This was 13 years ago. If all he did was polish up a brief, give some pointers on oral argument, I can easily see this slipping his mind in comparison to other cases he has done.

Just because the case looks large on some political agendas doesn't mean it would necessarily do so for Roberts.

I can barely remember who I worked for 13 years ago, much less what I might have billed a couple dozen hours to.

yetanotherjohn said...

On the other hand, if he highlighted this case, wouldn't his detractors immediately start emphasising the minor role he played? He is in a remarkably tough position (though by his own choice since he accepted the Presidents nomination). Everything he has done in his life will be put under the microscope and looked at in the worst possible light. He will be attacked from the left and the right for not espousing their diametrically opposed views.

The more I look at the process the more I think Ginsberg got it right on the confirmation hearings. Just smile and politely blather but say nothing. Maybe instead of an amendment to elect judges, we should consider an amendment on what grounds a presidential nominee can be questioned, filibustered or voted on.

Gerry said...

I don't see the issue here. They asked for instances, not a complete list, correct?

Finn Kristiansen said...

I think if one was going for a job on the Supreme Court, and being marketed as a conservative, and picked by a conservative president, it should be extremely difficult to forget work on a landmark gay rights decision. Especially when you are aware that everyone is trying to avoid judges with hidden Souterpowers (the power to be invisible, intellectually).

And Dean, I want to congratulate you on your work before the Supreme Court. You got some great wins, causing Scalia to pause in admiration, point to you from the bench and say "You are the man." What? You don't remember? Cause it was 13 years ago? Well you did! (And I dare say you can't suggest that you did not work on such cases at all, can you? You have no clue.)

Who a lawyer represents, however nobly, is important. You can really be good and brilliant at what you do, head down to the task at hand, in effect tying your intellect and skills, in oppenheimeresque fashion, to the equivalent of an atomic bomb that explodes over society.

Bruce Hayden said...

I must take issue with the, apparently, prevailing view that the measure struck down in Romer v. Evans was to allow discrimination against Gays. Rather, it went the other way, attempting to prevent homosexuality from being treated as a suspect or protected classification.

In short, it wasn't anti-gay, but rather, anti-gay rights.

As usual though, when the courts step into a political dispute and circumvent the political will of the people, the debate isn't ended, it is just pushed underground to simmer, as we have seen with abortion.

The basic problem is that today, probably even a larger majority in Colorado believe that someone shouldn't be preferentially treated just because of their homosexual behavior.

Elizabeth said...

That's doublethink, Bruce. It's special treatment to allow people to be fired because of their sexual orientation. Over and over, this argument just keeps coming. You could say the same thing about segregation and Jim Crow--special rights for blacks! Nobody else is protected from lynching, why should they be special? Maybe because the bigots take special aim at them?

leeontheroad said...

This is good reporting yet also may play into wide-ranging attempts to portray Roberts as a stealth this or that candidate. So far this week:

* Hitchens goes after his Catholicism, but, happily, Prof. Bainbridge works over that one.

* Ann Coulter calls him another Souter, but Powerline's counter-quip about that one get buzz.

Now we have, in stealth fashion itself, whether Roberts discounts work on Romer or, even-- again-- what if any sympathy Roberts might have with gay folk.

The final decision in Romer indeed transcends gay rights because the initiative would have created a suspect class, negative action, if you will, permitting discrimination against that class or peceived class with regard to jobs and housing that is nominally disallowed elsewhere. (From the majority opinion

"A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause.")

For my own part, if Roberts helped the litigators lead the majority to affirm that principle, good. It seems to me such is the basis of civil society.

If he didn't help that much, he certainly didn't get in the way. Also good.

leeontheroad said...

Bruce, your comments would suggest what Justice said said in his dissent. But the vote was 6-3 that the sweeping intiative violated Equal Protection.

Further, the idea that the initiative expressed the will of the people is only, I believe, partly true. The statewide initiative was popularly passed, yes. But it passed to override more local, exisitng ordinance-- passed by elected representatives in various municipalities. I recognize those are not necessarily indicative of the will of a majority of the state, but the whole state doesn't get to vote for city council, either.

In the initiative case, I think the folks who wrote it over-reached. That was an error.

Dirty Harry said...

Was Roberts in plaid pants while working on this case?

Dirty Harry said...

"Hard right?" "Flipping out?" I must've missed the flipping. And if you're Hard Right I must be a member of The Klan. Which disturbs me because they're a bit soft on the gun issue.

I see they quoted but didn't bother to link to GayPatriot. Hmm?

And BTW, after months of wooing Dan at GayPatriot has just agreed to double his blogging duties and join mine and Bridget's site. He'll still be at GP but we're thrilled to have him as a contributor.

Patrick said...

"In short, it wasn't anti-gay, but rather, anti-gay rights. "

Don't be silly. If it had been upheld it would have been legal to fire someone from their job for being gay, while making it illegal to fire someone from their job for being straight.

It's still all about prejudice. It was clearly evident in Scalia's and Thomas's dissent.

"Coloradans are entitled to be hostile toward homosexual conduct." Scalia added that the majority opinion giving the victory to the gay-rights activists "has no foundation in American constitutional law, and barely pretends to."

Scalia clearly doesn't recognize gay Americans has having an actual identity, rather than just exibiting a behavior. Typical prejudiced and willful ignorance. If a human being doesn't have an identity, and isn't recognized on the basis of such, then how can they be human? It's really the worst sort of dehumanizing rhetoric.

Patrick said...

"In short, it wasn't anti-gay, but rather, anti-gay rights. "

Don't be silly. If it had been upheld it would have been legal to fire someone from their job for being gay, while making it illegal to fire someone from their job for being straight.

It's still all about prejudice. It was clearly evident in Scalia's and Thomas's dissent.

"Coloradans are entitled to be hostile toward homosexual conduct." Scalia added that the majority opinion giving the victory to the gay-rights activists "has no foundation in American constitutional law, and barely pretends to."

Scalia clearly doesn't recognize gay Americans has having an actual identity, rather than just exhibiting a behavior that he doesn't like. Typical prejudiced and willful ignorance. If a human being doesn't have an identity, and isn't recognized on the basis of such, then how can they be recognized as human in the first place? It's really the worst sort of dehumanizing rhetoric. But he won't admit that. Because if you admit that the identity exists, then you have to admit that the humanity exists as well. And he doesn't want to do that. And so like most of those prejudiced toward gay or lesbian Americans, Scalia prefers to think of us as just straight people behaving badly, rather than as simply being who we are, with our orientation a neutral aspect, like skin or hair color. It's moral cowardice, really.

Patrick said...

"In short, it wasn't anti-gay, but rather, anti-gay rights. "

Don't be silly. If it had been upheld it would have been legal to fire someone from their job for being gay, while making it illegal to fire someone from their job for being straight. Thats not about just gay rights, thats human rights. And a lack of equal protection under the law as well.

It's still all about prejudice. It was clearly evident in Scalia's and Thomas's dissent.

"Coloradans are entitled to be hostile toward homosexual conduct." Scalia added that the majority opinion giving the victory to the gay-rights activists "has no foundation in American constitutional law, and barely pretends to."

Scalia clearly doesn't recognize gay Americans has having an actual identity, rather than just exhibiting a behavior that he doesn't like. Typical prejudiced and willful ignorance. If a human being doesn't have an identity, and isn't recognized on the basis of such, then how can they be recognized as human in the first place? It's really the worst sort of dehumanizing rhetoric. But he won't admit that.

Because if you admit that the identity exists, then you have to admit that the humanity exists as well. And he doesn't want to do that. And so like most of those prejudiced toward gay or lesbian Americans, Scalia prefers to think of us as just straight people behaving badly, rather than as simply being who we are, with our orientation a neutral aspect, like skin or hair color. It's moral cowardice, really.

Patrick said...

I swear to God I only hit the publish button once.

Mark Congdon said...

Patrick,

You wrote, regarding the Colorado amendment:

If it had been upheld it would have been legal to fire someone from their job for being gay, while making it illegal to fire someone from their job for being straight.

Actually, I'm pretty certain that it would have been equally legal to fire somebody for any sexual orientation (or lack thereof). If a homosexual employer had decided to only employ homosexual employees, and had fired existing heterosexual employees based on that policy, I am pretty sure Colorado law would have supported his right to take that action.

In fact, that was the default position... and as far as I know, still is the default position in Colorado.

Whether that is a good way for the law to exist or not, well, that's a good question. But, I haven't seen any signs that it was (or is) illegal to fire someone in Colorado because they are a heterosexual.

Mark

Mark Congdon said...

Patrick,

You also wrote:

Scalia clearly doesn't recognize gay Americans has having an actual identity, rather than just exhibiting a behavior that he doesn't like. . . If a human being doesn't have an identity, and isn't recognized on the basis of such, then how can they be recognized as human in the first place?

(1) I see no reason to suspect that Scalia "doesn't like" homosexual behavior. His dislike, if it exists, certainly wasn't referenced in his arguments.

(2) I hope you aren't suggesting that human beings that enjoy homosexual sex have that as their only identity... that if you deny them that identity, they would cease to be human? That's what you said, but it seems quite absurd on the face of it. Each of us has a very complicated identity.

I think that "human beings that enjoy homosexual sex" is probably as close as we can get right now to a definition of "homosexuals". You can't say when a baby is born, "this baby is a homosexual, and always will be one". Maybe someday we'll be able to... who knows. We can't even say, "this person is a homosexual today, and therefore still will be one next year".

So, I think your statement that I quoted above would be more accurate written:

"Scalia recognizes gay Americans by the behavior they exhibit."

And, in fact, there is currently no other way for the law to recognize them.

Similarly, you wrote:

Scalia prefers to think of us as just straight people behaving badly

No, I think Scalia probably prefers to think of you as a person behaving. Not a "straight" person or a "gay" person or any other such label... just a person. Not behaving "badly" or "goodly" or any other way... just behaving.

Being an advocate of state's rights, he feels that states should be able to legislate behavior as they choose.

Notice Scalia's wording: "Coloradans are entitled to be hostile toward homosexual conduct." The word conduct is, I think, critical in understanding his position. If you changed the word "hostile" to any other attitude ("supportive", "undecided", etc.)... if you changed the word "homosexual" to any other type of behavior ("heterosexual", "body-piercing", "car-loving", "chocaholic", etc.)... I think in either case he would hold the exact same position.