Supreme Court nominee John G. Roberts Jr. worked behind the scenes for gay rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people from discrimination because of their sexual orientation.
Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay rights activists as part of his law firm's pro bono work. He did not write the legal briefs or argue the case before the high court, but he was instrumental in reviewing filings and preparing oral arguments, according to several lawyers intimately involved in the case.
Gay rights activists at the time described the court's 6-3 ruling as the movement's most important legal victory. The dissenting justices were those to whom Roberts is frequently likened for their conservative ideology: Chief Justice William H. Rehnquist, Antonin Scalia and Clarence Thomas.
Roberts' work on behalf of gay rights activists, whose cause is anathema to many conservatives, appears to illustrate his allegiance to the credo of the legal profession: to zealously represent the interests of the client, whoever it might be.
This is a case of donating his work, not just pursuing the interests of a paying client. But his firm was working on the case, and he was asked to help, supposedly, and didn't balk:
The lawyer who asked for Roberts' help on the case, Walter A. Smith Jr., then head of the pro bono department at Hogan & Hartson, said Roberts didn't hesitate. "He said, 'Let's do it.' And it's illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job."
So Roberts can still look like someone who dutifully performed whatever job was put in front of him -- if that's what you want to see.
Roberts did not mention his work on the case in his 67-page response to a Senate Judiciary Committee questionnaire, released Tuesday. The committee asked for "specific instances" in which he had performed pro bono work, how he had fulfilled those responsibilities, and the amount of time he had devoted to them.
Smith said the omission was probably just an oversight because Roberts was not the chief litigator in Romer vs. Evans, which struck down a voter-approved 1992 Colorado initiative that would have allowed employers and landlords to exclude gays from jobs and housing.
"John probably didn't recall [the case] because he didn't play as large a role in it as he did in others," Smith said Wednesday. "I'm sure John has a record somewhere of every case he ever argued, and Romer he did not argue. So he probably would have remembered it less."
I find this incredibly hard to believe. Romer v. Evans was a huge case. It wouldn't just slip your mind!
But I hasten to add that Romer presented very important issues about democratic processes and the relative power of state and local government. These issues transcended gay rights and might well have strongly engaged a person who did not care one way or the other about the gay rights movement.
Jean Dubofsky, lead lawyer for the gay rights activists and a former Colorado Supreme Court justice, said that when she came to Washington to prepare for the U.S. Supreme Court presentation, she immediately was referred to Roberts.Read the whole article. I don't get the impression that Roberts hid this work in his answers to the Judiciary Committee. He simply talked generically about working on pro bono cases, and why should he forefront the cases where he was not the lead lawyer?
"Everybody said Roberts was one of the people I should talk to," Dubofsky said. "He has a better idea on how to make an effective argument to a court that is pretty conservative and hasn't been very receptive to gay rights."
She said he gave her advice in two areas that were "absolutely crucial."
"He said you have to be able to count and know where your votes are coming from. And the other was that you absolutely have to be on top of why and where and how the state court had ruled in this case," Dubofsky said.
She said Roberts served on a moot court panel as she prepared for oral arguments, with Roberts taking the role of a Scalia-like justice to pepper her with tough questions.
UPDATE: Malcontent read this post and characterized me as "hard right" and "flipping out." Maybe you'd be a little less of a malcontent if you read things a little more carefully before... flipping out.