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Unless they discover John Roberts dropped acid at Harvard or had been funneling
insider stock tips to his wife, it looks as though he's a shoo-in for confirmation
as a member of the US Supreme court. In his last job in the private sector, as
a partner at Hogan & Hartson, an elite DC law firm, his gross income in 2003
was $1,044,399.54, so his gamble in accepting a seat on the federal appeals court
on the DC circuit has certainly paid off. Already he's being talked up as maybe
the next chief justice, replacing William Rehnquist, the justice he formerly clerked
for.
Both the liberals and the Christian right had amassed colossal war chests of
around $20 million, expecting a convulsive confirmation hearing stretching far
into the fall. They'll be hard put to spend the money, since Roberts's footprints
have purposively indistinct almost since he left the cradle.
His highest profile legal opinion came when he was Solicitor General Ken Starr's
deputy back in Bush Sr's term. Roberts wrote a government brief arguing Roe
v Wade had been wrongly decided and should be overruled. Always prudent, he
later published a law review article in 1994, with a footnote that said: "In
the interest of full disclosure, the author would like to point out that as
Deputy Solicitor General for a portion of the 1992-93 Term, he was involved
in many of the cases discussed below. In the interest of even fuller disclosure,
he would also like to point out that his views as a commentator on those cases
do not necessarily reflect his views as an advocate for his former client, the
United States."
Hearings for Sandra Day O'Connor's replacement were scheduled to be the big
late-summer spectacular, with blood in the water from the outset. The cable
companies were licking their lips at a surge in revenues and journalists pumped
for days of high- voltage action. Karl Rove was no doubt hoping that a savage
confirmation battle would drive Plame-gate off the front pages. So there's an
unmistakable sense of anti-climax. The Weekly Standard crowd, to judge by executive
editor Fred Barnes' column, reckons it's an okay nomination but that Bush could
have done better, with some zealot like the madman J. Michael Luttig from the
Fourth Circuit or Edith Jones from the Fifth Circuit, who has said straight
out she want to see Roe v Wade overturned.
There's similar, muted disappointment from Sandra Day O'Connor and, no doubt,
from the First Lady, both of whom had said they wanted to see a woman replace
O'Connor( presumptively one who would not overturn Roe v Wade.)
The libertarians rooted for Michael McConnell, now on the federal appeals bench
on the Tenth circuit. But McConnell doomed himself in 2001, when he wrote a
law review article disagreeing with the US Supreme Court ruling on the Florida
challenge, not something that the Bush White House is likely to forget. Roberts,
then a partner at Hogan & Hartson, was providing crucial legal and strategic
advice to Jeb Bush on how to run the recount.
What is one to make of Roberts? He's a Fifties-era Midwesterner, son of a Bethlehem
steel executive, churchy and prudish. Already at Harvard he was gorging himself
on chocolate chip ice-cream and gulping down bottles of Pepto-Bismol while quoting
Samuel Johnson. This was in '73 and '74 when Pepto-Bismol was not the elixir
of preference and Dr Johnson not your average law school student's bedside reading.
He's fifty but he seems a lot older, and although people are reckoning that
he could be still on the bench in 2035 those bottled-up Midwesterners have a
tendency to swerve prematurely into the graveyard.
The prime lobby that should feel gratified by his nomination is of course Big
Business, the protection of whose interests has been Roberts chief concern throughout
his career, and the protection of whose interests has always been the prime
concern of the US Supreme Court. Listen to the assessment of Boalt law professor
and torture-defender, John Yoo: "Roberts is the type of person that business
conservatives and judicial-restraint conservatives will like, but the social
conservatives may not like. 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 change constitutional law."
Already some seasoned court watchers are saying that Roberts should not be
teamed up with the court's two right-wing ultras, Scalia and Thomas, but with
the corporate-oriented, pro-big government "center", Kennedy and Bryher.
Remember that in the court's last two terrible decisions, on medical marijuana
and eminent domain, Kennedy and Bryher were part of the majority that ruled
against the former and in favor of business developers and the local governments
that serve their interests.
Roberts' record may be opaque when it comes to Roe v Wade but on corporate
issues it's as clear as daylight. When he was deputy solicitor general he ran
the government's case when the Supreme Court issued what was probably the most
devastating ruling on environmental issues in the last generation. This was
the Lujan v National Wildlife Federation decision in 1990. It tightly restricted
the doctrine of "standing" which gives environmentalists the right
to challenge destructive practices on federal lands.
It would be hard for Roberts to argue that he was just doing his job as a government
lawyer. Returning to private practice from the Solicitor General's office, he
was swiftly picked as counsel by the National Mining Association, which had
noted his victory in the Lujan decision. On behalf of the coal companies Roberts
wrote a legal brief arguing that local citizens in West Virginia had no right
to bring lawsuits challenging the most destructive form of mining ever devised,
mountain-top removal. Later, going through confirmation to the Appeals Court,
Roberts was asked what had been his most significant cases in private practice.
In his response he proudly highlighted his work for the coal companies.
Then, only months after his appointment to the federal Appeals Court bench
Roberts once again tried to promote corporate destruction in the Rancho Viejo
v Norton case, where the federal Fish and Wildlife Service had made a ruling
in favor of the endangered arroyo toad and against a California developer. The
DC circuit court ruled 2-1 in favor of the toad, with Roberts as the minority
vote. He had argued, vainly, that there was no federal interest because the
toad "for reasons of its own, lives its entire life in California."
In harmony with his pro-corporate tilt, Roberts's wife, Jane Sullivan Roberts,
is a very big-time corporate lawyer, specializing in the global communications
sector. She works in a Democratic law firm, but we can safely assume this does
not betoken acrimony over the Roberts' morning ingestion of eggs and bacon,
grits, hash browns, eased down by gulps of Pepto Bismol. They both serve the
same corporate masters.