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Analysis: Making sense of Roberts' positions is a task
Thursday, July 21, 2005

WASHINGTON -- In 1991, John G. Roberts Jr., then deputy solicitor general in the first Bush administration, told the Supreme Court its historic decision supporting a woman's right to an abortion was "wrongly decided and should be overruled."


John G. Roberts Jr.
  
In 2003, when Roberts was up for a judgeship, he played down his earlier statement, explaining that he only made the administration's case against Roe v. Wade because that was his responsibility as its lawyer.

After 11 years in government service and 10 years at one of Washington's largest law firms, Roberts has earned a reputation as a brilliant litigator who argues passionately for his clients' positions. The question the Senate will debate as it decides whether to elevate him to the Supreme Court is which of those positions are also his own.

As a long-standing member of the Republican National Lawyers Association who gave Republican Gov. Jeb Bush private legal advice during the 2000 presidential election recount in Florida, Roberts' political loyalties are plain. As a former clerk to then-Associate Justice William Rehnquist and a protege of former Solicitor General Kenneth Starr, his conservative credentials are solid.

But in his first two years on the federal bench, his opinions have been generally noted for dispassionate reasoning rather than inflammatory language. Roberts' short time on the bench and the relative paucity of his writings have left critics and supporters with little by which to judge how he'll vote on the Supreme Court.

In his April 2003 confirmation hearings for a federal judgeship, Roberts maintained that he always separates his personal beliefs from his duty to follow the law -- including Roe v. Wade, which he described as a long-settled precedent.

He reminded the Senate Judiciary Committee that "the positions a lawyer presents on behalf of a client should not be ascribed to that lawyer," and said his own private legal practice had not been "ideological in any sense." Roberts said he has represented affirmative-action supporters as well as foes, and once helped a group of welfare recipients get their benefits restored.

As President Bush noted Tuesday night, 146 members of the D.C. bar -- Democrats as well as Republicans -- signed a letter calling him "one of the very best and most highly respected appellate lawyers in the nation," hailing his "unquestioned integrity and fair-mindedness."

Many liberals suspect that the conservative positions he advocated in the Reagan administration were no different from the positions he would advocate on the court. Many conservatives think so, too, even though Roberts is less outspoken and less aggressive than some other judges considered for the court.

"I know he's conservative by talking with him about issues," said Fred Fielding, for whom Roberts worked as a White House deputy counsel. Fielding said Roberts supported expansive presidential powers and tended toward a "more literal reading of the Constitution."

John Yoo, a conservative professor of law at University of California at Berkeley, who served in the Justice Department under the current Bush administration, emphasizes what he called Roberts' traditional approach to the law. In the 39 cases that Roberts argued before the Supreme Court -- 25 of which he won -- Yoo said he never pushed the court to adopt "big new theories," but rather argued his cases' facts.

"He's the type of person that business conservatives and judicial restraint conservatives will like, but the social conservatives may not like," Yoo said. "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 shake up constitutional law. They might make course corrections, but they're not trying to sail the boat to a different port."

First published on July 21, 2005 at 12:00 am
Correction/Clarification: (Published 7/22/05) Supreme Court nominee John G. Roberts Jr. is not a member of the Federalist Society. Roberts has given speeches to the conservative group, but does not recall having been a member, a White House spokeswoman said.
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