"There's no question this is going to upset people on the right," Rush Limbaugh told his radio listeners. "There's no question the people on the right are going to say: 'Wait a minute. Wait a minute! The guy is doing pro bono work and helping gay activists?' "
And she quotes the plaintiff's lawyer from the case, Jean Dubofsky, who sought out Roberts because he was recommended as someone who could help her anticipate the arguments the Court's conservatives would make:
Judge Roberts ... spent about six hours on the case, Ms. Dubofsky said. "He told me, 'You have to know how to count and to get five votes, you're going to have to pick up the middle.' "It would be very interesting to know all the advice Roberts gave about how to play the Supreme Court to get to five, which is all you need to win. Anyone can figure out that it doesn't matter that you can't convince the most conservative three, so the strategy should be to try to peel off one of the middle two so that the liberal four will have their fifth vote. The key, it seems, was to anticipate the arguments the conservative three would make so that you could think of ways to convince either Kennedy or O'Connor not to ally with them. Roberts was ideally suited to do exactly that: he was recommended as someone who understood the conservative mind and who would be willing to help the other side counter the arguments that mind would generate.
And then, she said, Judge Roberts provided explicit instructions on how to do just that, telling her that she would have to prove to the court it did not have to overturn a previous case, Bowers v. Hardwick, which upheld a ban on homosexual sodomy. He peppered her with questions in a moot court session.
"So when I was asked by Justice Scalia if they would have to overturn Bowers v. Hardwick to rule my way, I said no," Ms. Dubofsky said, adding, "In this particular case if you wanted to get the U.S. Supreme Court turned around on gay rights issues, you didn't have to win every gay rights case floating around out there."
Ultimately, in a forceful opinion by Justice Anthony M. Kennedy, the court said the Colorado provision had put the state's gay men and lesbians in a "solitary class," singling them out in violation of the Constitution's equal protection guarantee in a manner that was so sweeping as to be inexplicable on any basis other than animus. Chief Justice Rehnquist and Justices Scalia and Clarence Thomas, the justices to whom Judge Roberts is most often compared, issued a blistering dissent.
Six hours of his insight into that problem was a tremendous benefit the plaintiffs. You would not bestow such a benefit on a cause you hated. But it is a good thing that Roberts does not regard gay rights as a hateful cause. Those who are worried about "another Souter" are absolutely right to be nervous, as they were from the start. Or should liberals be worried that they're being suckered into imagining him as a liberal?
Myself, I like the Justice to have some complexity about him. There are times when I worry that Roberts is too thin a character. I want a real human being on the Court, not a legal machine. When the ideologues have to worry about what they're getting, I'm happy.
UPDATE: Jim Lindgren comments on this post and makes some good observations about highly educated conservatives:
[V]ery well educated conservatives rarely fit the public stereotypes assigned to them. While very high educations tend to make liberals more consistently liberal, very high educations tend to make conservatives less consistently conservative (and thus less extreme) on social issues....Lindgren phrases his observation in terms of the right being more diverse than the left. But another way to put it is to say that the highly educated usually reject social conservatism. The position on national security is then arrived at as a separate matter.
This is a bit like highly educated bloggers: while supposedly "conservative" bloggers might support Bush's court nomineees and the War on Terror, such "conservatives" often take the liberal side on some issues, such as perhaps abortion rights, gay rights, assisted suicide, and stem-cell research, and they might also believe in evolution, oppose mandatory school prayer, or favor the right to burn flags. Such a diversity of views among the highly educated left is much more rare.