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Barely two weeks ago, John Roberts Jr. seemed a shoo-in for speedy confirmation as the newest judge of the U.S. Court of Appeals for the D.C. Circuit. A Senate Judiciary hearing was set for May 23, and all indications were that it would be a cursory affair. But May 23 turned out to be the day that Sen. James Jeffords of Vermont made it clear that he would leave the Republican Party, shifting control of the Senate to the Democrats. Judiciary Chairman Orrin Hatch, R-Utah, cancelled Roberts’ hearing, along with those of two other judicial nominees. And with the cancellations apparently went all prospects for a rapid and painless ascension to the bench for several Bush nominees, including Roberts, 46, the highly regarded head of Hogan & Hartson’s appellate practice. That’s because Jeffords’ bombshell is giving liberal interest groups — including the National Abortion and Reproductive Rights Action League (NARAL), People for the American Way, and the Alliance for Justice — something they previously lacked: time. Time to do research, time to network, and time to try to influence new Judiciary Committee Chairman Patrick Leahy, D-Vt., and his Democratic Senate colleagues. Although no one is suggesting now that Roberts will be defeated, NARAL, considered one of the more influential of the liberal activist groups, announced its formal opposition to him on May 21. “There is no question that John Roberts’ views represent a serious threat to the constitutional rights of women and the rights of reproductive choice,” says Kate Michelman, NARAL’s president. “He has argued consistently [in court cases], whenever possible, that there is no right of choice.” Michelman predicts that “a number of other members of the advocacy community” will soon join NARAL’s opposition to Roberts. She declines to specify which ones. Although leaders of People for the American Way and the Alliance for Justice are more circumspect than Michelman, it appears likely that Roberts will face more heat. Undeservedly so, say Roberts’ supporters, who note that Roberts has advocated for so-called liberal positions in some cases and has the admiration of many legal scholars and practitioners who don’t share his conservative views. “John Roberts is possibly the foremost appellate lawyer of his generation,” concludes Lawrence Robbins, a former lawyer in the solicitor general’s office and now a partner in Washington, D.C.’s Robbins, Russell, Englert, Orseck & Untereiner. “The idea of arguing what he would do as a judge, based on positions he has advanced in court, is reckless. These groups are not being candid. They are just playing politics. They should be honest and just say they will oppose any nominee by this president.” The promise of a flap over the nomination of Roberts — who served for four years as deputy solicitor general in the first Bush administration and who has argued 33 cases before the Supreme Court — represents the first hint of the political climate that will likely affect other circuit court nominees, including Jeffrey Sutton, Michael McConnell, and Miguel Estrada. Marcia Greenberger, co-president of the National Women’s Law Center, which has not yet taken a position on any judicial nominees, says that the NWLC rarely plunges into debates over lower court judges. But now, she says, “we are evaluating the role we’ll play and the posture we’ll take, in view of the types of nominees that this administration is seeking and the importance of preserving American women’s rights.” Marcia Kuntz, director of the judicial selection project of the Alliance for Justice, says that although it’s too early in the process for the alliance to make a call on Roberts, “all of these [nominees] need to be looked at.” “There is no time frame now. No hearings are scheduled. The Democrats are now in control of the agenda,” Kuntz says. “The administration wants to show that these nominees are mainstream conservatives,” Kuntz adds, “but we have major concerns that Roberts may not be in the mainstream on issues like choice and the environment.” AN ADVOCATE’S RECORD On the abortion issue, Michelman notes that as deputy solicitor general, Roberts wrote in a 1991 brief that the Supreme Court’s conclusion in Roe v. Wade that there is a fundamental right to abortion “finds no support in the text, structure, or history of the Constitution.” The case was Rust v. Sullivan, which raised the issue whether the Department of Health and Human Services could constitutionally limit its grantees’ ability to engage in abortion counseling. The case was argued by then-Solicitor General Kenneth Starr. The Court upheld the HHS restrictions in a 5-4 decision. Michelman also says that in Bray v. Alexandria Women’s Health Clinic, a 1993 case involving access to abortion clinics, Roberts, still in the SG’s office, said anti-abortion protesters’ behavior did not amount to discrimination against women. Abortion rights groups argued that since only women have abortions, the protests had a sex-based animus. The Court agreed with Roberts, who argued the case, in another 5-4 vote. Liberal activists can also identify cases in which Roberts advocated positions antithetical to the goals of labor, environmental groups, and supporters of affirmative action. Some point to Toyota Motor Mfg. v. Williams, an Americans With Disabilities Act case in which the 6th U.S. Circuit Court of Appeals held in a divided ruling that a Toyota plant worker with carpal tunnel syndrome qualifies for the act’s protections. The Supreme Court granted Roberts’ petition for certiorari on Toyota’s behalf in April. Roberts declines comment on his nomination. Calls to the White House counsel’s office regarding the nomination were not returned. CLIENT WISHES OR CORE VALUES? But Roberts’ supporters say it is wrong-headed to infer a lawyer’s political views from his statements in briefs or arguments on behalf of clients — especially in the case of a nominee like Roberts, who has never stepped out from his role as counsel to express personal opinions. “They apparently are going to attribute to John everything said in every brief filed by the Department of Justice that he signed,” says Robbins. “No lawyer would wish to be held to every position which, as an advocate, he was required to advance. That denies the role of the lawyer in the adversary process.” Says Barbara Van Gelder, a former assistant U.S. Attorney and now a partner in Wiley, Rein & Fielding: “The guy doesn’t get to pick his positions as a government lawyer. When he was in the SG’s office, he was a fair advocate, and his positions were always in the best light of the government.” Robbins points out that Roberts has argued quite often for positions associated with the liberal end of the spectrum. For example, in Rice v. Cayetano, a 2000 Supreme Court case, Roberts argued — against conservative icon and now Solicitor General Theodore Olson — that Hawaii did not impose an improper racial preference when it limited voting in certain state elections to indigenous Hawaiians. The Supreme Court rejected Roberts’ position in a 7-2 ruling. Roberts also represented several states this year in the D.C. Circuit appeal of Judge Thomas Penfield Jackson’s controversial order to break up the Microsoft Corp., a cause far more popular with liberals than with the corporate community. Richard Lazarus, the director of the Supreme Court Institute at Georgetown University Law Center, supports Roberts’ nomination and says Roberts “is not an ideological person at all.” Says Lazarus, whose personal views tend to the liberal side of the spectrum: “In the eight years since he left the solicitor general’s office, I don’t think Roberts has filed a single amicus brief for a conservative ideological organization. And I will guarantee that given his prominence, he’s being asked all the time to do so. He just hasn’t played at all in that game.” Liberal activists respond that in some circumstances, it’s perfectly appropriate to press a judicial nominee about positions that he or she has taken as an advocate. Michelman says, “Roberts was there in the first Bush administration in part because his views were in sync with that administration’s hostility to reproductive rights for women. He did a job that he felt comfortable doing.” Elliot Mincberg, legal director of People for the American Way, agrees. Speaking generally about judicial nominees, he says, “I don’t think the fact that someone is an advocate insulates him from some responsibility for the content of what’s being advocated.” People for the American Way has not yet taken a position on Roberts. But from the noises emanating from the liberal groups, the records of nominees whose views are more visible than Roberts’ also will be fuel for a political fire. McConnell, nominated for the 10th Circuit, has strongly opposed traditional concepts of church-state separation. Sutton, tapped for the 6th Circuit, is a champion of the states’ rights cause that is cutting across areas from affirmative action to the ADA. Even Estrada, a former assistant to the solicitor general who spent several years in Olson’s appellate shop at Gibson, Dunn & Crutcher, is likely to face scrutiny in his bid for a spot on the D.C. Circuit. “We are looking into Miguel Estrada,” NARAL’s Michelman says. “Although we are not yet prepared to take a formal stand, we have grave concerns about him as well.”

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