August 5, 2005

"Wait a minute! The guy is doing pro bono work and helping gay activists?"

Linda Greenhouse has a piece today about Judge Roberts' work on Romer v. Evans (a landmark gay rights case). She quotes Rush Limbaugh's reaction:
"There's no question this is going to upset people on the right," Rush Limbaugh told his radio listeners. "There's no question the people on the right are going to say: 'Wait a minute. Wait a minute! The guy is doing pro bono work and helping gay activists?' "

And she quotes the plaintiff's lawyer from the case, Jean Dubofsky, who sought out Roberts because he was recommended as someone who could help her anticipate the arguments the Court's conservatives would make:
Judge Roberts ... spent about six hours on the case, Ms. Dubofsky said. "He told me, 'You have to know how to count and to get five votes, you're going to have to pick up the middle.' "

And then, she said, Judge Roberts provided explicit instructions on how to do just that, telling her that she would have to prove to the court it did not have to overturn a previous case, Bowers v. Hardwick, which upheld a ban on homosexual sodomy. He peppered her with questions in a moot court session.

"So when I was asked by Justice Scalia if they would have to overturn Bowers v. Hardwick to rule my way, I said no," Ms. Dubofsky said, adding, "In this particular case if you wanted to get the U.S. Supreme Court turned around on gay rights issues, you didn't have to win every gay rights case floating around out there."

Ultimately, in a forceful opinion by Justice Anthony M. Kennedy, the court said the Colorado provision had put the state's gay men and lesbians in a "solitary class," singling them out in violation of the Constitution's equal protection guarantee in a manner that was so sweeping as to be inexplicable on any basis other than animus. Chief Justice Rehnquist and Justices Scalia and Clarence Thomas, the justices to whom Judge Roberts is most often compared, issued a blistering dissent.
It would be very interesting to know all the advice Roberts gave about how to play the Supreme Court to get to five, which is all you need to win. Anyone can figure out that it doesn't matter that you can't convince the most conservative three, so the strategy should be to try to peel off one of the middle two so that the liberal four will have their fifth vote. The key, it seems, was to anticipate the arguments the conservative three would make so that you could think of ways to convince either Kennedy or O'Connor not to ally with them. Roberts was ideally suited to do exactly that: he was recommended as someone who understood the conservative mind and who would be willing to help the other side counter the arguments that mind would generate.

Six hours of his insight into that problem was a tremendous benefit the plaintiffs. You would not bestow such a benefit on a cause you hated. But it is a good thing that Roberts does not regard gay rights as a hateful cause. Those who are worried about "another Souter" are absolutely right to be nervous, as they were from the start. Or should liberals be worried that they're being suckered into imagining him as a liberal?

Myself, I like the Justice to have some complexity about him. There are times when I worry that Roberts is too thin a character. I want a real human being on the Court, not a legal machine. When the ideologues have to worry about what they're getting, I'm happy.

UPDATE: Jim Lindgren comments on this post and makes some good observations about highly educated conservatives:
[V]ery well educated conservatives rarely fit the public stereotypes assigned to them. While very high educations tend to make liberals more consistently liberal, very high educations tend to make conservatives less consistently conservative (and thus less extreme) on social issues....

This is a bit like highly educated bloggers: while supposedly "conservative" bloggers might support Bush's court nomineees and the War on Terror, such "conservatives" often take the liberal side on some issues, such as perhaps abortion rights, gay rights, assisted suicide, and stem-cell research, and they might also believe in evolution, oppose mandatory school prayer, or favor the right to burn flags. Such a diversity of views among the highly educated left is much more rare.
Lindgren phrases his observation in terms of the right being more diverse than the left. But another way to put it is to say that the highly educated usually reject social conservatism. The position on national security is then arrived at as a separate matter.

24 comments:

Goesh said...

now I know why Master Dick Cheney has that shine and glow in his eyes any time he is around Mr. Roberts

Wave Maker said...

I am perplexed as to how you could possibly fear Roberts to be a "thin" character. It seems to me he is as meaty as they come.

Ann Althouse said...

Wave Maker: He may be "meaty" in terms of his legal credentials, but I'm talking about humanity. He seems to be a squeaky clean boy scout. What does he know of life?

DaveG said...

Of course, anybody but "squeaky clean" wouldn't stand a chance in today's confirmation environment, not matter what the party affiliation of the sitting President. Witness the admitted digging into Robert's childrens' adoptions by the NY Times looking for "irregularities."

I'm also not clear what needs to be known of life to read a document that clearly (well, that's arguable I suppose) states what is and what is not allowed to be legislated for/against.

I'm of the opinion that having too much life experience might get in the way of what should be strict legal interpretation of the Consitution.

Just my $.02 (why isn't there a 'cent' character on keyboards??)

R C Dean said...

He may be "meaty" in terms of his legal credentials, but I'm talking about humanity. He seems to be a squeaky clean boy scout. What does he know of life?

Well, what do any of the rather sheltered and privileged professionals know about life when they are elevated to the Court. Hard knocks, at least as adults, are pretty few and far between for people who rise high enough in the legal profession to be considered for the Court. And once they get on the Court, forget about it.

Besides, being a squeaky clean boy scout is not necessarily a sign of stupidity, callousness, indifference, inhumanity, or any other character trait that should disqualify a man from high office. Being careful not to crap all over yourself and those around you strikes me as, on the whole, a good thing.

StrangerInTheseParts said...

"Squeaky Clean" maybe, maybe not.

Surely what we've got on our hands here is a guy who has, apparently, never ruffled ANYONE's feathers too vigorously. He only seems to take strong somewhat partisan positions when he has the cover of working for someone else.

What values will this guy go to the mat for when he's speaking just for himself? Or will he always seek the cover a majority?

Mark Daniels said...

"When the ideologues have to worry about what they're getting, I'm happy."

Precisely.

DaveG said...

what we've got on our hands here is a guy who has, apparently, never ruffled ANYONE's feathers too vigorously.

John Bolton for the Supreme Court??

chuck b. said...

"Roberts spent about *six hours* on the case" telling the lawyer to try to look for a majority vote and, as mentioned in the other post, to be really familiar with the lower court decision.

I'm sorry--this consitutes valuable legal advice? A good paralegal would give you this advice. *I* could have given this advice. My geriatric cat could crap this advice. No wonder Roberts forgot to mention it.

Menlo Bob said...

What Limbaugh actually said was that the LA Times was attempting to divide Republicans with the story and Republicans shouldn't fall for that. The New York times takes part of Limbaughs comment and leaves readers with an opposite impression. About what you'd expect.

Ann Althouse said...

Menlo: A big problem is that Limbaugh doesn't publish a transcript. I'd love to get his transcripts to blog!

chuck b. said...

To comment on the update re: Lindgren, I need to know what we means by educated. He says "Well educated" but you say "highly educated". I think those are very different things.

You can be well educated after high school, but that doesn't make you highly educated. Anyone w/ a PhD is highly educated, but that does make them well educated? I don't think so.

Serenity Now said...

He seems to be a squeaky clean boy scout. What does he know of life?

Equating "squeaky clean boyscout" with "ignorant of life" seems shallow to me. I don't think you can make this kind of assumption just because a person's life story doesn't entertain you.

chuck b. said...

What we means! Too funny. I typed He than made it We and didn't change the agreement.

Imo, being well educated means having your viewpoints and conclusions rigorously challenged back and forth.

Being highly educated does not necessarily mean that. I wish getting an education guaranteed that it did, but that's not really how it works.

StrangerInTheseParts said...

DaveG -

Bad post on my part....I got the emPHAsis wrong.

It's not the feather ruffling that I wanted to call attention to. Nor is feather ruffling, a la Bolton, something which I laud or feel is a necessary quality in a person.

My point is more about the absence of people who have been ticked off by Roberts' methods or stances. How can you rise so high in the world and not have a trail of people who have been, at the very least, surprised and disappointed by you?

I guess Ann has said it clearest - the idealogues are not going to be happy with Roberts. I think he's heading for the middle of the court. Or at the very least, a frequently nuanced type of conservatism which can hear what the other side is saying. (All of which I am happy about...I just don't think Bush's base will be.)

passengerone said...

While maybe it is easier for me since I am not appalled by the outcome of the case, I find the best thing about this revelation is that it actually humanizes Roberts. Based on all of the press and blog coverage of this guy, Roberts has come off as the Stepford Justice, i.e., someone who programmed himself right about the time he went to work in the steel mill to become a Supreme Court Justice by doing everything perfectly but generically (and perfection can be so damnable some times). The idea that the guy actually got excited enough about the case to sit down for a few hours to lend his services f.o.c. despite perhaps having an alternative philosophy makes me think maybe he is more prepared to be creative once he reaches the Court than I thought. Sure, that probably makes the far right blanch, but who really cares about James Dobson anyway?

XWL said...

I think your construction of the concept 'But another way to put it is to say that the highly educated usually reject social conservatism' is entirely backwards.

Highly educated (and therefore superior intellectually) people don't automatically reject social conservatism because of their superior intellect (which your sentence suggests, consciously or unconsciously).

However, almost invariably the system that leads to 'higher' education (hard sciences excluded, mostly, but the social views of chemist aren't in question) is thoroughly infected with people and process that is contemptuous, hostile and punitive towards anyone who challenges the left leaning secular humanist default world view of the academic caste.

Challenging the dogma of those in charge of your progress through the system is the path of greatest resistance for advancement within academia and people rarely choose that path.

Bob said...

Ann,
Limbaugh does indeed provide a transcript Here it is.

Ann Althouse said...

RC Dean: "Well, what do any of the rather sheltered and privileged professionals know about life when they are elevated to the Court. Hard knocks, at least as adults, are pretty few and far between for people who rise high enough in the legal profession to be considered for the Court. And once they get on the Court, forget about it."

You're right. And this is a chronic problem with courts! I'd say Justice O'Connor had seen a lot of life. And Justice Thomas. But the standard thing is to simply be a privileged person who was positioned to jump on the fast track early and disciplined about staying on it and doing everything right.

Chuck B: You're quite wrong. Six hours of the advice he gave was extremely valuable. He had very strong ability to channel the conservatives' mindset and he did practice oral arguments to help the plaintiff hone the argument. This is incredibly helpful!

Michael: I'm not assuming that a squeaky clean type person knows nothing of life. I'm just saying that a certain level of squeaky cleanliness makes me WORRY that he doesn't know enough about life. Since I'm being asked to trust this person for decades, it's not about being fair to him by not making assumptions. It's a matter of being especially demanding now because of the permanence and importance of the appointment!

Bob: Thanks for the transcript link. I'll have to read it and get back on this.

And in case it's not clear, folks, I love Judge Roberts, have the highest hopes for him, and think Bush did a brilliant job picking him!

vbspurs said...

One vote for Chuck_the_B's geriatric cat for the Supreme Court, here.

vbspurs said...

[V]ery well educated conservatives rarely fit the public stereotypes assigned to them. While very high educations tend to make liberals more consistently liberal, very high educations tend to make conservatives less consistently conservative (and thus less extreme) on social issues....

I actually have to disagree with Mr. Lindgren's point above, to an extent.

This may be true of political Conservatives who are not religious, that a higher education makes Conservatives less conservative socially, but I think one of the aspects of John Roberts' life which is going under the radar is that he's a religious Catholic, like Justice Scalia.

And for what it's worth, like me.

I am socially Conservative as well, due to in equal parts personality, and importance of RC'ism to my life.

To me, John Roberts is sounding more and more like a stealth Libertarian.

And I don't like that.

We'll see, I suppose. His confirmation, with or without the dirt under the carpets on his kiddies' adoptions, is a done deal.

The only ones who can overturn his confirmation, are indeed, the Republicans themselves.

Cheers,
Victoria

Wave Maker said...

I don't know where this "sheltered" and "privileged" stuff comes from. The guy wasn't HANDED an admission to Harvard and his position as editor of the Harvard Law Review. What does he know of life? Seems to me you're assuming a lot based upon his, what, education?

The people who have known him over the years have unanimously spoken highly of him, and not just his intelligence or legal skills, but his character and personality.

What strikes me as ANYTHING but shallow is his penchant for taking road trips to the venues at issue in the cases he has litigated, such as his trip to Alaska on an environmental case. This is hardly the lawyer who is cloistered in his law library poring over casebooks.

Ann Althouse said...

Wave Maker: As I said before, I'm not assuming. I'm WORRIED. I want material to disprove what I'm worried about. In legal talk: I put the burden of persuasion on him. I do give him credit for having a lot of knowledge of how business works, based on his experience as a litigator. You're right that he traveled to places as a lawyer and stressed getting first hand info. That is to his credit.

But what I'm WORRIED about -- not that it's a basis to oppose him -- is what ends up being true of nearly all Supreme Court nominees: he's been successful and advantaged all his life. Of course he had to work very hard to achieve what he did, but that also makes him the kind of person who put work first and had an overachiever mentality. That may make a person too unidimensional to have a deep understanding of many of the aspects of life that a court must make judgments about.

Wave Maker said...

He's "been advantaged" all his life? What does that mean, Ann? That he was plucked out of nowhere and put in the back seat of a limo? Did he have opportunities, due to the accident of his birth, that others do not? Gee, that doesn't worry me. The question is, what did he do with them, and the answer is pretty much everything right.

If you'd like to see something more of who he is, take a look at this piece about his father -- and consider if his father would have permitted him to think of himself as "being advantaged."