Thank you for sharing!

Your article was successfully shared with the contacts you provided.
WASHINGTON — President Bush chose a judge who sits just a stone’s throw away from the U.S. Supreme Court to replace Justice Sandra Day O’Connor. In an address to the nation Tuesday evening, Bush named Judge John Roberts Jr., who hails from the D.C. Circuit U.S. Court of Appeals. Roberts’ credentials include a clerkship for Chief Justice William Rehnquist and stints as a deputy solicitor general and a top-flight appellate practitioner at Hogan & Hartson. In the estimation of some, the 1979 Harvard Law School graduate is also the finest oral advocate who’s been before the high court in the past decade. At 50, Roberts is a little younger than most of the other nine justices at the time of their high court appointments. “It’s definitely a strategic move by the administration to get in someone who’s going to be able to sit on the court for decades,” said Thomas Goldstein of the Washington, D.C., Supreme Court boutique Goldstein & Howe. Getting to this point has been a long and steady climb for Roberts, who was first nominated to the D.C. Circuit while he was in the Office of the Solicitor General in 1992. His nomination died, prompting Roberts to return to Hogan and build an esteemed and lucrative Supreme Court practice. He argued 39 cases before the court in both the private and public sector, winning 25. President Bush nominated him again in 2001, and again Roberts languished until finally winning unanimous confirmation in 2003. With just 25 months on the D.C. Circuit, Roberts has few opinions or other writings to incite critics. As a result, some conservatives have made unflattering comparisons between Roberts and Supreme Court Justice David Souter, whose short stint on the First Circuit before being appointed in 1990 by the first President Bush failed to reveal Souter’s moderate-to-liberal leanings on some issues. Yet those who know Roberts say he, unlike Souter, is a reliable conservative who can be counted on to undermine, if not immediately overturn, liberal landmarks like abortion rights and affirmative action. Indicators of his true stripes cited by friends include: clerking for Rehnquist, membership in the Federalist Society, laboring in the Ronald Reagan White House counsel’s office and at the Justice Department into the Bush years, working with Kenneth Starr among others, and even his lunchtime conversations at Hogan & Hartson. In short, Roberts may combine the stealth appeal of Souter with the unwavering ideology of Antonin Scalia and Clarence Thomas. At a discussion earlier this year before the D.C. chapter of the Corporate Counsel Association, Roberts got considerable mention when a panel of Supreme Court experts was asked to handicap possible nominees. “I think it will be John Roberts,” said Latham & Watkins partner Maureen Mahoney during the discussion. “He has the brilliance, dedication and temperament to emerge as an intellectual leader of the court,” she said afterward. Mark Levin, author of “Men in Black,” a conservative critique of the Supreme Court, is a fan of Roberts. “In the short period he has been on the court, John Roberts has shown he does not bring a personal agenda to his work,” Levin said earlier this year. “He follows the Constitution, and he is excellent.” So far on the D.C. Circuit, Roberts’ votes have mainly fallen on the conservative side, but not always. In December, in United States v. Mellen, Roberts ruled in favor of a criminal defendant who challenged his sentence in a fraud case. In a July 2004 decision, Barbour v. Washington Metropolitan Area Transit Authority, Roberts joined Merrick Garland � a Clinton appointee � in deciding that sovereign immunity did not bar a D.C. employee with bipolar disorder from suing the transit agency under federal laws barring discrimination against the disabled. But then there was another WMATA case � known as “the french fry case” � that some critics point to as a sign of a certain hardheartedness in Roberts’ decision-making. In the unanimous ruling in October in Hedgepeth v. WMATA, Roberts upheld the arrest, handcuffing and detention of a 12-year-old girl for eating a single french fry inside a D.C. Metrorail station. “No one is very happy about the events that led to this litigation,” Roberts acknowledged in the decision, but he ruled that nothing the police did violated the girl’s Fourth or Fifth Amendment rights. Roberts also displayed what some viewed as insouciance toward arroyo toads in a 2003 case, Rancho Viejo v. Norton. Roberts wanted the full D.C. Circuit to reconsider a panel’s decision that upheld a Fish and Wildlife Service regulation protecting the toads under the Endangered Species Act. Roberts said there could be no interstate commerce rationale for protecting the toad, which, he said, “for reasons of its own lives its entire life in California.” In another decision in June 2004, Roberts went even further than his colleagues in supporting the Bush administration in a case that pitted the government against veterans of the first Gulf War. American soldiers captured and tortured by the Iraqi government during the first Gulf War sued the Iraqi government in U.S. court and won nearly $1 billion in damages at the district court level. But once Saddam Hussein was toppled in 2003, the Bush administration wanted to protect the new Iraqi government from liability and intervened to block the award. Roberts, alone among the circuit judges who ruled with the government, said the federal courts did not even have jurisdiction to consider the victims’ claim. “These decisions are troubling in a lot of ways,” said Elliot Mincberg of the liberal People for the American Way, a point person in any battle over Supreme Court nominees. But Mincberg’s criticism of Roberts, voiced in an interview earlier this year, may be muted somewhat by the fact that he worked with Roberts at Hogan years back and likes him personally. “He’s a very smart lawyer and easy to work with, but there is no question he is very, very conservative,” Mincberg said. Another person who might otherwise be a critic of Roberts is a longtime friend. Georgetown University Law Center professor Richard Lazarus, an environmental law advocate, was a classmate of Roberts at Harvard Law School and roomed with him when they first came to Washington 25 years ago. “John Roberts and I are very good friends, and I think very highly of him as a person, lawyer and judge,” said Lazarus with care earlier this year. “After that, I have to bow out.” As unassuming as Roberts is, he also has a keen sense of humor, friends say. When Roberts was deputy solicitor general in 1990, he and Hogan friend E. Barrett Prettyman Jr. were adversaries in Lujan v. National Wildlife Federation, a case that turned out to be a landmark decision narrowing the doctrine of standing. Prettyman’s federation clients claimed they had standing to challenge certain Interior Department land management decisions because they used nearby land for recreational purposes. Roberts argued that was not a specific enough injury to achieve standing. Before the argument, Prettyman says, Roberts went out West to look over the public lands at issue in the case. “He sent me a postcard from out there,” Prettyman recalls. “He wrote that he had looked and looked for my client, but couldn’t find her.” As it turned out, neither could the Supreme Court. It ruled 5-4 that Prettyman’s clients had no right to sue. Roberts’ argument won the day. This article was written using recent stories from Tony Mauro, the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. Reporter Jeff Chorney and the Associated Press contributed to this report.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.