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Washington-John Roberts Jr. went before the Senate Judiciary Committee as a Hoosier, a Reagan administration go-getter, a skilled Supreme Court practitioner and an appeals court judge. The Supreme Court practitioner won out. In both content and tone, Roberts’ three days of testimony conveyed more than anything else the demeanor and world view of a high court litigator at the top of his game: pragmatic and nonideological, cool to the point of being bloodless, at times. By the end of the week it seemed possible to sketch the outlines of a John Roberts chief justiceship as one informed by lawyerly values: respectful of tradition but interested in resolving cases practically and efficiently, without too much reference to causes or ideology. That pragmatic Roberts approach could, perhaps surprisingly, work to heighten the court’s profile. Roberts says he wants the justices to take on more cases and controversies. And that pragmatism, right now at least, leaves liberals and conservatives alike almost where they were when the week of hearings started: guessing where on the political spectrum Roberts’ jurisprudence would fall. If Roberts is confirmed, it will be the first time in 75 years that the nation will have a recent legal practitioner serving as chief justice. “You seem to be a lawyer above all,” said Senator Charles Schumer, D-N.Y., in summing-up remarks on Sept. 15. And practicing lawyers, he added, “don’t tend to be ideologues.” Roberts, who grew up in Indiana, held high-level posts in both the Reagan and George H.W. Bush administrations, but spent a decade as a partner at Hogan & Hartson until he became a judge on the U.S. Circuit Court for the District of Columbia two years ago. He has the most recent experience as a private lawyer of any chief justice since Charles Evans Hughes left his New York practice in 1930 to lead the high court. At times during Roberts’ testimony, it seemed that Roberts thought he was still in private practice. When Senator Richard Durbin, D-Ill., asked him on Sept. 14 why he represented a health maintenance organization that wanted to limit coverage for second opinions in the 2002 case Rush Prudential v. Moran, Roberts lapsed into the present tense in discussing his legal work. “I don’t sit in judgment” of clients, Roberts said, unless their arguments are frivolous. “I don’t take cases in which those are raised.” He said he would have argued the patient’s side in the Rush case if she had come to him first. At nearly every turn, when senators tried to probe Roberts’ values and humanity, he reached back to his private practice, rather than any other kind of church or charitable work, to explain himself. Asked by Durbin if he could overcome his “comfortable life” to understand the plight of the powerless, Roberts rattled off the underdog plaintiffs he had represented as a proxy for his ability to relate to average people. “If it’s somebody who is representing a criminal defendant who’s facing a long sentence in prison, I’ve done that,” said Roberts. “If it’s somebody who is representing the plaintiffs in an antitrust case, I’ve been in that person’s shoes.” But Democrats wanted more, repeatedly prodding him to bare his emotions, perhaps even to cry. But the lawyer’s shield went up: Roberts would not cooperate by emoting; instead he held to his rigid line against commenting-from either the heart or the mind-on issues he might face. Asked by Senator Joseph Biden, D-Del., to discuss the right to die “as a father,” Roberts said curtly, “I’m not going to consider issues like that in the context as a father or a husband or anything else.” Five years ago, in the context of Supreme Court oral arguments, Roberts told Legal Times: “Impassioned rhetoric doesn’t work . . . .If it did, I’d become impassioned.” Turning on the passion might have helped win over Senate Democrats, but Roberts likely calculated that he would not gain some of their votes even if tears flowed. As a Supreme Court advocate, Roberts was skilled at counting to five-the number of justices needed to prevail. Before the Senate, he had clearly counted at least to 10-the number of Republicans on the 18-member panel. Suggesting a careful course But it was evident that Roberts’ instincts as a lawyer will also inform his decision-making on the court, should he be confirmed as expected. As he threaded his way through question after question about his views on the right to privacy and the role of a justice, Roberts again took a pragmatic approach and seemed comfortable with distancing himself from more ideological justices such as Antonin Scalia and Clarence Thomas, though he did not mention them by name. “I depart from some views of the original intent” movement, Roberts said in an exchange on Sept. 14. Originalists, he suggested, believe that the Constitution should be interpreted in light of “just the conditions at that time, just the particular problem” at the time of the Constitution’s drafting. “I think you need to look at the words they used, and if the words adopt a broader principle, it applies more broadly,” he said. When principles like liberty are involved, Roberts said, “that doesn’t get a narrow construction.” An expansive view of the meaning of “liberty” as protected by the 14th Amendment has led other justices to vote in favor of gay rights, abortion and the right to die. “Some of the things he has said can’t be good news to conservatives,” said Edward Lazarus, a partner at Akin Gump Strauss Hauer & Feld in Los Angeles and author of the 1988 book Closed Chambers. “He is saying he doesn’t have a grand jurisprudential theory, and he’ll use all the tools in the toolbox. It’s nice to have a guy who is pragmatic.” But, Lazarus said, the danger in that approach is that “it could open him to the charge that he will use whichever analytical method will get him to the result he wants.” Conservatives, by and large, don’t seem overly concerned by Roberts’ testimony. “I think it’s fair to say that Roberts said things that suggest a broader embrace of privacy and liberty interests than Scalia or Thomas,” said Curt Levey, general counsel of the Committee for Justice, which has actively supported Roberts’ nomination. But “he stopped far short of promising to uphold Roe. I don’t know any conservatives who would overrule Griswold v. Connecticut, nor do I know any who expected Roberts to suggest he would overturn Roe.” During his testimony, Roberts embraced Griswold, the 1965 ruling that articulated a right of privacy and served as a precursor to Roe. Roberts also parted company with Scalia on an issue that makes Scalia apoplectic: the use of legislative history in cases interpreting statutes. Scalia thinks that congressional floor debates and reports are misleading indicators of what Congress had in mind when it wrote a law a certain way, and he sticks to the words of the statute. But Roberts said that as a practitioner, he often cited legislative history that favored his position, and he expected he would “follow that same approach on the Supreme Court.” Last week, Roberts also displayed an openness toward considering the practical impact of decisions he would make. Senator Edward Kennedy, D-Mass., asked Roberts about a friend-of-the-court brief filed by retired military leaders in the 2003 affirmative action case Grutter v. Bollinger. The brief argued that the military needs a diverse officer corps and that ending affirmative action would jeopardize achievement of that goal. Kennedy might have been expecting Roberts to say he would be guided only by the constitutional issues involved, but Roberts instead gave a nod to the importance of the brief. “You do need to look at the real-world impact,” Roberts said. Chief justice In his responses on the role of chief justice, Roberts also showed the sensibility of a lawyer who practices before the court-and intimately knows its practices. That background has already given him concrete ideas for tweaking court operations. Roberts offered two policy pronouncements about how he would try to do things differently as chief justice. First, he said he thought the court could handle more than the roughly 80 cases it decides now every year. And second, he said he would try to reduce the number of writings per case-fewer concurrences, in other words-in hopes of producing rulings that give clearer guidance to lower-court judges and lawyers. Both goals would be on the wish list of any Supreme Court practitioner. Lawyers who argue before the court often voice frustration that it passes up important issues that have divided lower courts; they wish the court would accept more of their cases for review. Roberts noted that when he was a law clerk on the court in 1981, the justices were deciding twice as many cases as they are now. “There’s the capability there to hear more cases today, not fewer,” Roberts said during testimony on Sept. 14. Somewhat surprisingly, Roberts also pledged that he would try more aggressively to persuade his colleagues to join a single opinion of the court, rather than splinter off with partial concurrences or dissents, as they often do now. “It’s a responsibility of all of the justices, not just the chief justice, to try to work toward an opinion of the court,” Roberts told committee Chairman Arlen Specter, R-Pa. Specter had complained about the welter of high court opinions in the enemy combatant and Guant�namo Bay cases in 2004, and about the seemingly contrary rulings in the two Ten Commandments decisions in June. “You don’t, obviously, compromise strongly held views,” Roberts said, “but you do have to be open to the considered views of your colleagues. Particularly when it gets to a concurring opinion, I do think you do need to ask yourself, ‘What benefit is this serving? Why is it necessary for me to state this separate reason?’ “ Roberts continued: “I do think the chief justice has a particular obligation to try to achieve consensus consistent with everyone’s individual oath to uphold the Constitution, and that would certainly be a priority for me if I were confirmed.” That is an ambitious goal that his mentor and predecessor, William Rehnquist, largely abandoned. Roberts also made a pledge that will go a long way toward maintaining harmony on the court. He said he would not abuse the chief justice’s power of assigning the writing of opinions in which he votes with the majority. The late Chief Justice Warren Burger was accused by some of his colleagues of voting in the majority so that he could control the writing of the decision and then changing his vote. But the biggest signal to the Senate and to the nation that Roberts is a practitioner at heart may have been his repeated explanations of why lawyers don’t often turn away clients whose views they might oppose-a stance that lawyers sometimes have to explain to their spouses or at cocktail parties. Roberts said toward the end of his testimony on Sept. 15: “You’re going to take the side of whomever comes in the door first. I think that’s a disparaging way to capture what is, in fact, an ennobling truth about the legal system: that lawyers serve the rule of law, above and beyond representing particular clients.”

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