Record of Accomplishment -- And Some Contradictions
By R. Jeffrey Smith and Jo Becker
Washington Post Staff Writers
Wednesday, July 20, 2005; A01
In 1991, John G. Roberts, then deputy solicitor general in the first Bush administration, told the Supreme Court its historic decision supporting a woman's right to an abortion was "wrongly decided and should be overruled." In 2003, when Roberts was up for a judgeship, he dismissed his earlier statement as merely "one or two sentences," explaining that he only made the administration's case against Roe v. Wade because that was his responsibility as its lawyer.
After 11 years in government service and 13 years at one of Washington's largest law firms, Roberts has attained a reputation as a brilliant litigator who argues passionately for his clients' positions. The question that the Senate will debate is which of those positions are also his own.
As a lifelong Republican, Federalist Society member and veteran of the Reagan and first Bush administrations, the 50-year-old lawyer has impeccable conservative credentials. But his rhetoric is cool, earning him many friends and few outspoken enemies. And he has maintained there is a divide between what he believes and how he regards and treats the law. "My practice," Roberts said on April 30, 2003, "has not been ideological in any sense. My clients and their positions are liberal and conservative across the board."
His nomination that year to the U.S. Court of Appeals for the D.C. Circuit nonetheless managed to attract opposition from the liberal Alliance for Justice and NARAL, the abortion rights organization. At the same time, 146 members of the D.C. bar signed a letter calling him "one of the very best and most highly respected appellate lawyers in the nation, with a deserved reputation as a brilliant writer and oral advocate. He is also a wonderful professional colleague both because of his enormous skills and because of his unquestioned integrity and fair-mindedness."
"He's the type of person that business conservatives and judicial restraint conservatives will like, but the social conservatives may not like," said John C. Yoo, a professor of law at the University of California at Berkeley who served in the Justice Department earlier in the Bush administration. "What the social conservatives want is someone who will overturn Roe. v. Wade and change the court's direction on privacy.
"But he represents the Washington establishment. These Washington establishment people are not revolutionaries, and they're not out to shake up constitutional law. They might make course corrections, but they're not trying to sail the boat to a different port."
In his confirmation hearings for the appeals court, Roberts said he resisted being labeled either as an "originalist" or a "textualist," referring to the schools of legal thought that seek to interpret the Constitution according to the intent of its authors or the literal meaning of its words. He compared himself at one point to John Adams representing a British soldier involved in the Boston Massacre, noting that "the positions a lawyer presents on behalf of a client should not be ascribed to that lawyer."
But Fred F. Fielding, the boss when Roberts served as a White House deputy counsel under President Ronald Reagan, said, "I know he's conservative by talking with him about issues." Fielding added: "He's generally conservative on presidential powers," a key issue as Bush fights terrorism, and generally tends toward a "more literal reading of the Constitution."
Roberts was born in Buffalo and grew up in Long Beach, Ind., an affluent beachside town on Lake Michigan. The son of a Bethlehem Steel executive, he graduated first in his high school class and in 1973 went to Harvard University, a son of the Midwest whose middle-America values did not go unnoticed by classmates at a time when conservatives on campus were uncommon.
He found a mentor in William P. LaPiana, now a law professor at New York Law School and at the time a prelaw adviser at the campus housing where Roberts lived. LaPiana remembers that while Roberts was a brilliant student of history, graduating summa cum laude in three years, he was also humble, considered a relatively rare trait for someone with Roberts's academic standing.
Roberts had received an excellent grade from a tough professor, and was eager to share the news with LaPiana. Still, he was self-deprecating about it, saying, "I think my head will fit through the door." Though LaPiana said he "probably disagrees with Roberts about just about everything," the moment stands out for him as one that indicates that he has the temperament to be a good judge. "It showed both maturity and humility," he said.
At Harvard Law School, Roberts was once again a star and known as something of a straight arrow. David W. Leebron, the law review editor and now president of Rice University, remembers stopping off for ice cream with Roberts, the review's managing editor, after working late. Roberts always chose the same flavor: vanilla chocolate chip.
"I'm the type of person who wants to try other things, but he makes his choices and gets comfortable with them," Leebron said.
After graduating from law school in 1979, Roberts clerked for Judge Henry J. Friendly of the U.S. Court of Appeals for the 2nd Circuit, in New York, and then for Associate Justice William H. Rehnquist.
After that, he worked as a special assistant to U.S. Attorney General William French Smith and joined Reagan's staff as an aide to White House counsel Fielding, who became his mentor in GOP circles.
Roberts joined the Washington law firm of Hogan & Hartson in 1986, then went into President George H.W. Bush's administration, arguing cases before the Supreme Court as Solicitor General Kenneth W. Starr's principal deputy. He was nominated to the D.C. Circuit in 1992, but the appointment died when Bill Clinton succeeded Bush as president. Roberts returned to Hogan & Hartson, where he headed the firm's appellate practice and frequently argued before the Supreme Court.
In the aftermath of the disputed 2000 presidential election, Roberts played a key, if quiet, role in the Florida recount. Although his name did not appear on the briefs, three sources who were personally aware of Roberts's role said he gave Gov. Jeb Bush (R) critical advice on how the Florida Legislature could constitutionally name George W. Bush the winner at a time when Republicans feared that if the recount were to continue the courts might force a different choice.
Roberts's first writing as a federal judge was an opinion dissenting from a decision by his colleagues on the U.S. Court of Appeals not to reconsider a three-judge panel's ruling protecting a rare California toad under the Endangered Species Act.
Roberts thought the court ought to give a developer whose freedom of action had been restricted in favor of the toad another chance to make his argument that the Constitution did not permit the government to regulate activity affecting what he called "a hapless toad" that "for reasons of its own lives its entire life in California."
But Roberts made this conservative point in moderate tones -- though his opinion hinted he might side with the developer, he hardly committed to doing so in advance.
"To be fair," he wrote, the panel "faithfully applied" the circuit court's precedent, but a rehearing would "afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent."
And that, say the many Washington lawyers, judges and public officials who know him, is Roberts in a nutshell.
Paul Mogin, Roberts's law school roommate and now a Washington lawyer, said Roberts was rarely confrontational about his politics and said he could not point to a significant discussion that led them to conclude that he was conservative. "I just knew he was conservative across the board," said Mogin, "It just came across whenever we would get to talking about movies or politics or something."
But, he added, "I doubt he has any particular agenda that he'd be going into the court with."
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