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There may be reasons to oppose the nomination of John Roberts Jr. to the U.S. Supreme Court, but none of the following should count: When he was a young lawyer working for the office of the solicitor general under the first President Bush, Roberts worked on briefs that argued that (a) Roe v. Wade should be overruled; (b) at the very least, Roe should be read so narrowly that “the right to choose” could be encumbered by all sorts of restrictions; and (c) a statute designed to suppress the Ku Klux Klan should not be used to put down protests at abortion clinics. Surely we can’t expect a government lawyer to refuse to work on a brief, or to resign, every time he is told to make an argument he does not share personally. Otherwise, the turnover among government lawyers (and lawyers in private practice as well) would be enormous. At some point, to be sure, an argument may be so implausible that no competent lawyer would want to associate herself with it. But an attack on Roe, for example, can hardly be called evidence of foolheadedness or zealotry. Although I have long been a strong supporter of Roe, it cannot be denied that over the years some of the nation’s most highly regarded legal scholars have sharply criticized Justice Harry Blackmun’s opinion in that case. Six years ago, the Clinton administration decided that it would not defend the constitutionality of a federal statute purporting to overrule Miranda. As a result, the solicitor general and several lawyers in his office wrote an excellent brief that helped persuade the Supreme Court to strike down the statute. But this does not constitute any evidence that the government lawyers who worked on the brief were enamored of Miranda or “soft on crime.” If a different president had been in office, and had told them to do so, I don’t have the slightest doubt that these very same government lawyers could have written a powerful and persuasive brief urging the court to uphold the anti- Miranda statute. (In fact, I am convinced that at least one of the lawyers who helped write the government’s brief would have preferred to argue the other side.) I must confess that my views on the matter grow out of an incident I experienced 50 years ago, shortly after I graduated from law school. I had just started work at a Washington law firm (Covington & Burling). One of its clients was General Electric Co. A union had sued General Electric, contending, among other things, that several of the company’s executives had conspired with Senator Joseph McCarthy and his aides to deprive union members of their constitutional rights. In this connection, the union sought access to executive minutes of certain Senate subcommittee meetings involving McCarthy. A senior partner called me into his office to inform me that McCarthy’s own lawyer was doing such a poor job of explaining why the Senate shouldn’t have to turn the executive minutes over to the courts that “we are going to have to make the argument for him,” i.e., devote a part of our brief to a defense of the senator’s position. I was assigned the job of doing the historical research. Duty to be an advocate At the time, I suspect, there were very few people who detested McCarthy more than I did. But what could I do? I was not eager to find out whether refusing the assignment would get me fired. Even if it would not, it was hard to believe that it would improve my chances of making partner some day. The bottom line, I convinced myself, was that I was a lawyer-an advocate-and on this issue, as well as on most others, I could make a good argument either way. So I wound up writing a draft of a segment of a brief on behalf of the senator, finding “separation of powers” precedents supporting his position dating back to 13th century England. I should add that two other lawyers who worked on the same brief I did detested McCarthy every bit as much as I did: Abe Chayes, who, between two stints as a Harvard law professor, served as the Kennedy administration’s chief international lawyer (and a quarter-century later, represented the Sandinista-led government of Nicaragua in its World Court lawsuit against the United States); and Burke Marshall, who later became assistant attorney general for civil rights in Robert Kennedy’s Justice Department and then a Yale law professor. Chayes and Marshall were two of the strongest proponents of freedom of expression and freedom of association I have ever known. But when they were being paid to be advocates, and the situation arose, they sided with the junior senator from Wisconsin. Yale Kamisar is a professor of law at the University of San Diego and professor emeritus of law at the University of Michigan.

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