John Roberts The Nominee

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       Volume LII, Number 15                                                                                        October 6, 2005




                 John Roberts: The Nominee
                                                      by William L. Taylor


                            The following article will appear in The New York Review of Books of October 6, 2005


        The most intriguing question about          a half years. During this period,           “court stripping.” It was part of the
        John Roberts is what led him as a           Roberts played an important part in         continuing legal struggle over enforc-
        young person whose success in life was      the administration’s efforts to curtail     ing the Supreme Court’s landmark de-
        virtually assured by family wealth and      the rights of African-Americans, to         cision in Brown v. Board of Education
        academic achievement to enlist in a         deny assistance to children with dis-       to end mandated racial segregation in
        political campaign designed to deny         abilities, and to prevent redress for       public schools. Efforts to implement
        opportunities for success to those who      women and girls who had suffered sex        Brown had stalled until 1964, when
        lacked his advantages. It is a question     discrimination. He also justified at-       Congress passed the Civil Rights Act,
        of great relevance to Roberts’s candi-      tempts by the state of Texas to cut off     which declared school desegregation
        dacy for the Supreme Court. As the          opportunities for the children of poor      to be national policy and provided the
        late Charles Black has written, no seri-    Latino aliens to obtain an education.       means for enforcing it. There followed
        ous person is under the illusion that       Roberts was in favor of limiting the        Supreme Court decisions adding legal
        “a judge’s judicial work is not influ-      progress of African-Americans in par-       content to the act, which then led to
        enced . . . by his sense, sharp or vague,   ticipating in the political process and     widespread desegregation of public
        of where justice lies in respect to the     of making far-reaching changes in the       schools throughout the South.
        great issues of his time.”                  constitutional role of the courts in pro-      In 1980, segregationists in Congress
          After a privileged upbringing in an       tecting rights.                             led by Senator Jesse Helms responded
        Indiana suburb, attendance at an ex-           In all of these efforts, which halted    with bills to prohibit the Justice De-
        clusive, expensive private school, high     temporarily when Roberts left govern-       partment from bringing action in the
        ranking at the undergraduate and law        ment for private practice in 1986, he       courts to desegregate schools, and to
        schools of Harvard, and clerkships          was no mere functionary. Indeed, he         bar the courts from issuing remedies
        with Federal Appeals Judge Henry            often was prepared to go beyond his         that would require the busing of stu-
        Friendly and Supreme Court Justice          conservative superiors in the Reagan        dents for that purpose. Similar bills
        William Rehnquist, John Roberts took        administration in mounting a counter-       were proposed in cases involving school
        a job in the Reagan administration.         revolution in civil rights, expressing      prayer and abortion rights.
        There he joined in its efforts to dis-      frustration with his conservative supe-        A fierce debate followed at the Jus-
        mantle the civil rights gains of the        rior at the Justice Department, Theo-       tice Department and in the Reagan
        1960s and 1970s. His work as a young        dore Olson, differing on a key consti-      White House. Some lawyers recog-
        man in the 1980s established the pat-       tutional issue with Robert Bork, and        nized that a great deal was at stake in
        tern of his later public career.            disagreeing on voting rights with Sena-     these bills — that they were an assault
          Roberts was first employed in 1981        tor Strom Thurmond.                         on the Supreme Court’s role as the
        and 1982 as a special assistant to                                                      final arbiter of what the Constitution
        the attorney general, William French                                                    means as well as an assault on the sep-
        Smith. He went from there to the                       Court Stripping                  aration of powers. David Brink, then
        Reagan White House in November              The issue that has had the most far-        president of the American Bar Associ-
        1982, where he served as associate          reaching implications for civil rights      ation, described the court-stripping
        counsel to the President for three and      was given the unilluminating name           bills as “a legislative threat to our

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        nation that may lead to the most seri-      “school desegregation.” Giving state
        ous constitutional crisis since our great   courts the final say over school deseg-     But it was in the second major civil
        Civil War,” and the ABA House of Del-       regation, he added, would not involve       rights battle of the early Reagan ad-
        egates “strongly objected” to the bills     unequal treatment because white offi-       ministration that Roberts, winner of an
        because they “propose to change the         cials as well as black groups would lack    undergraduate history award at Har-
        constitutional law by simple legisla-       the right to appeal. He did not suggest     vard College, revealed a surprising ig-
        tion, instead of by the means provided      how likely he thought it would be for a     norance of America’s racial past. The
        in the constitution.”                       state court to rule against the segrega-    issue in 1981 was whether Congress
           In addition, the Conference of Chief     tion practices of, say, Governor George     should renew key provisions of the
        Justices of the States resolved unani-      Wallace.                                    Voting Rights Act of 1965 and over-
        mously that court-stripping bills were         Although the Senate passed the           turn a 1980 Supreme Court decision
        a “hazardous experiment with the vul-       Helms-Johnston amendment to ban             that threatened to undermine the
        nerable fabric of the nation’s judicial     the use of busing to achieve desegre-       gains that African-Americans were
        system.” Within the Department of Jus-      gation, the House did not. Roberts did      making in securing their right to vote.
        tice Theodore Olson, then Roberts’s         not give up easily, however. As late as        The history of discrimination was
        superior and a lawyer with impeccable       1984, from his office in the White          unambiguous. Despite the guarantees
        conservative credentials, worried about     House, he wrote his boss, Fred Field-       of the Fifteenth Amendment, from the
        the advisability of supporting the leg-     ing, a memo reiterating his views that      end of Reconstruction in the late nine-
        islation. Other constitutional conserv-     Congress could legally bar the use of       teenth century through the early 1960s
        atives, such as Yale Law School profes-     busing as a school desegregation rem-       the states of the Old Confederacy
        sor Alex Bickel (an ardent opponent of      edy. But he concluded that given his        kept black people from registering to
        busing), and moderate Republicans,          lack of success “it would probably not      vote by a variety of strategies. As the
        such as former Attorney General             be fruitful to reopen the issue at this     Supreme Court struck down one de-
        Elliot Richardson, as well as Robert        point.” Still, Roberts wavered on           vice after another for disenfranchis-
        Bork (who was to become a model of          whether a ban on busing was good            ing blacks as violating the Fifteenth
        extreme legal conservatism), expressed      policy. In his 1984 memo to Fielding he     Amendment, states replaced them
        concern publicly about the constitu-        wrote approvingly that the Department       with others, finally resorting to pri-
        tionality and wisdom of court strip-        of Justice as a “matter of legislative      maries limited to white people. These
        ping. John Roberts had no such reser-       policy” regularly argued in the courts      practices were reinforced by racial vi-
        vations. In memos deriding Brink and        that busing was “counter-productive.”       olence. Many local black leaders who
        others, he claimed that Congress had        But later, in another memo to Fielding      were organizing people to vote were
        the power to eradicate busing as a          in 1985, Roberts, while repeating his       murdered by members of the Klan.
        “failed experiment.”                        position that stripping the Supreme            The barriers were largely effective.
                                                    Court of jurisdiction over school de-       In Mississippi in 1960, fewer than 6
        Roberts believed he had lost the in-        segregation was constitutional, said        percent of eligible black citizens were
        ternal debate with Olson even though        that he had thought banning busing          registered to vote. After federal laws
        Attorney General William French             was a bad “policy idea.”                    protecting blacks’ voting rights in 1957
        Smith testified in 1982 that while Con-                                                 and 1960 proved too weak to be effec-
        gress could not interfere with the                                                      tive, the civil rights movements of the
        “core powers” of the Supreme Court,                       Voting Rights                 1960s helped to produce the Voting
        it could establish limits to the reme-      In his views on court stripping, Rob-       Rights Act of 1965. The new law con-
        dies approved by the courts. Smith’s        erts revealed a striking lack of interest   tained special provisions allowing fed-
        distinction failed to recognize that the    in contemporary events. He adopted          eral officials to take over the registra-
        bill’s authors were proposing to abol-      the unsupported finding that Helms and      tion process if local officials continued
        ish what in many cases would be the         the Dixiecrats had placed in the voting     to resist, and it called for a federal re-
        only effective judicial remedy for unlaw-   rights bill, which held that busing as a    view of state laws that might limit
        ful segregation. And in the end, it was a   desegregation remedy was a failure          black voting.
        near thing. In his most substantial legal   and led to white flight. He omitted to
        writing on the subject, an undated          mention the fact that desegregation         T  he 1965 Voting Rights Act brought
        twenty-seven-page memo, Roberts con-        had spread throughout the South after       about large gains in registration and
        ceded that the equal protection clause      the Supreme Court’s landmark 1971           voting by African-Americans. But they
        of the Fourteenth Amendment could           “busing” decision in the Swann case,        were still struggling with strategies
        pose a formidable barrier to legislation    and that the first major report by the      designed to dilute the impact of their
        intended to strip the federal courts of     National Assessment for Educational         voting. This problem was compounded
        jurisdiction over cases involving school    Progress showed that the achievement        in 1980 by the Supreme Court’s 5 to 4
        desegregation. But, he noted, the prob-     gap between whites and African-             decision, in Mobile v. Bolden, which up-
        lem might be surmounted, since strict       Americans had been cut in half during       held the election of members at large
        scrutiny would be applied only if there     the 1970s, with the greatest gains com-     of the Mobile, Alabama, City Council
        were “racial classification,” and the       ing among third-grade black children,       rather than by district, even though it
        legislation in question would only clas-    most of whom were bused in the now          effectively prevented black voters
        sify cases by type, i.e., not “race” but    desegregated Southeast.                     from having representation on the

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        council. Because blacks were entirely         tion striking down any electoral         the state. In a memorandum to the at-
        barred from voting in 1911, when Mo-          system that is not neatly tailored       torney general, written shortly after
        bile had enacted the at-large plan, the       to achieve proportional represen-        the decision was announced, Roberts
        Court reasoned that the plan had not          tation along racial lines. In other      lamented that the dissenters had not
        been motivated by race. The current           words, the effects test in the Act       won the vote of Justice Lewis Powell.
        impact on race, the Court decided, was        could lead to a quota system in          If the Justice Department had joined
        not sufficient to show a violation. Since     electoral politics.                      the Texas case, Roberts said, its argu-
        the special provisions of the 1965 act                                                 ments in favor of judicial restraint
                                                    Throughout April, Roberts continued
        were up for renewal in Congress in                                                     might have persuaded Powell and al-
                                                    his campaign. He drafted a letter that
        1982, civil rights advocates were seek-                                                tered the outcome of the case. “This is
                                                    was sent to Senator Strom Thurmond
        ing a reversal of the Supreme Court’s                                                  a case,” he said, “in which our sup-
                                                    urging his support for striking down
        Mobile decision as well.                                                               posed litigation program to encourage
                                                    the House bill. On June 18, the Senate
           In the House in 1981 Republicans                                                    judicial restraint did not get off the
                                                    passed the bill by a vote of 85–8, with
        such as Henry Hyde of Illinois ex-                                                     ground and should have.”
                                                    Thurmond joining the majority. Ten
        pressed their skepticism not only of                                                      Roberts had also made clear his dis-
                                                    days later, Ronald Reagan signed the
        the need to extend the special provi-                                                  agreement with Shapiro v. Thompson,
                                                    bill into law.
        sions of the Voting Rights Act, but of                                                 a Supreme Court decision which struck
                                                      Nowhere in any of the memos that
        reversing Mobile v. Bolden as well.                                                    down state residency requirements for
                                                    have been made available did John
        Meanwhile the Reagan administration                                                    welfare benefits, on the grounds that
                                                    Roberts acknowledge the effect of
        equivocated, with the Justice Depart-                                                  he was unable to find any right to
                                                    the many years of disenfranchisement
        ment apparently split. Documents                                                       travel in the Constitution. Presumably,
                                                    on black citizens. Instead his concern
        show that John Roberts was one of the                                                  he would have upheld a California law
                                                    was about the effect of an imagined
        leading lawyers in the Justice Depart-                                                 barring the entry of indigent Okies
                                                    quota system on whites, a concern that
        ment fighting against any improve-                                                     from the Dust Bowl, which the
                                                    twenty-five years later has proved
        ments in the Voting Rights Act. But                                                    Supreme Court had invalidated in
                                                    to be groundless.
        something unexpected happened. As                                                      1941 as an invasion of the constitution-
        Henry Hyde listened to the testimony                                                   ally protected interest in allowing mi-
        of black witnesses from the South who                Roberts and the Poor              gration from state to state.
        were suffering discrimination, he de-       The indifference of John Roberts to
        cided that something had to be done.        people dealt a bad hand has not been                Limiting the Potential
        At the end of July 1981, the House Ju-      limited to African-Americans. In 1982,            of People with Disabilities
        diciary Committee sent to the floor a       the Supreme Court in Doe v. Plyler ad-     In 1982, during what appears to have
        strong bill for debate, including a re-     dressed the constitutionality of a Texas   been an extremely busy year, Roberts
        versal of Mobile, by a 25–1 vote. In Oc-    law that denied a free public education    turned his attention to the claims of
        tober, with the help of other conserva-     to school-age children who were not        students with disabilities under the
        tives, the bill passed the House by a       legally in the United States. The US       Education for All Handicapped Chil-
        vote of 389–24.                             did not participate in the case, in part   dren Act. Amy Rowley was a deaf stu-
           John Roberts, who had joined the         because the argument did not include       dent with minimal residual hearing,
        Justice Department in August and            the claim that the statute could be con-   who got by in school by virtue of ex-
        begun working on voting rights, did not     sidered an effort by Texas to help the     cellent lip-reading skills and an FM
        share the views of these House Repub-       federal government enforce its policy      hearing aid. Lower federal courts,
        licans. In November, Attorney Gen-          against illegal immigration. A divided     finding that there was a considerable
        eral Smith argued against the House         court upheld the lower court rulings       disparity between her achievement
        bill to extend the Voting Rights Act.       that struck down the Texas law. Justice    (which was described as about aver-
        When it was reported that the President     Brennan wrote for the majority:            age) and her potential, held that under
        would be announcing his readiness to                                                   the act she was entitled to the class-
                                                      The inability to read and write will
        sign the bill, Smith went to the White                                                 room services of a sign-language inter-
                                                      handicap the individual deprived
        House and succeeded in talking Rea-                                                    preter. Reagan’s solicitor general, Rex
                                                      of a basic education each and
        gan out of his position. He then testi-                                                Lee, supported their view. Justice
                                                      every day of his life. The stigma of
        fied in the Senate in January that the                                                 Rehnquist, writing for a divided
                                                      illiteracy will mark them for the
        administration did not support the bills.                                              Supreme Court in Board of Education
                                                      rest of their lives. By denying
           While civil rights groups worked                                                    v. Rowley, reversed that decision, hold-
                                                      these children a basic education,
        with Bob Dole to produce a draft that                                                  ing that all Miss Rowley was entitled
                                                      we deny them the ability to live
        was essentially the same as the bill the                                               to was an adequate education. The
                                                      within the structure of our civic in-
        House had passed, Roberts prepared a                                                   statute, he said, did not clearly require
                                                      stitutions, and foreclose any real-
        lengthy memo for Attorney General                                                      that “states maximize the potential of
                                                      istic possibility that they will con-
        Smith to give to the President. It read                                                handicapped children commensurate
                                                      tribute in even the smallest way to
        that the bill’s                                                                        with the opportunity provided to other
                                                      the progress of our nation.
                                                                                               children.” Justice White in dissent
          effects test would likely lead to           The Court found that the Texas law       pointed to provisions in the law sup-
          federal courts throughout the na-         did not further any substantial goal of    porting the guarantee of a “free and

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        appropriate education,” including the          not be spent in any fashion which               The Solicitor General Years
        act’s definition of special education as       encourages, subsidizes or results         After three and a half years in private
        “specifically designed instruction, at         in racial discrimination.                 practice, Roberts returned to the fed-
        no cost to parents or guardians, to             Title VI had been indispensable in       eral government in 1989 as principal
        meet the unique needs of a handi-            providing the legal instrument for dis-     deputy solicitor general, under Ken-
        capped child.”                               mantling racial segregation in schools,     neth Starr. In this new capacity, while
           After the decision, John Roberts          colleges, and hospitals. So, too, when      he supported civil rights claims in one
        wrote to Attorney General Smith ex-          Title IX was adopted it gave hope to        case before the court, arguing that de-
        pressing his disagreement with the so-       women denied faculty positions be-          segregation obligations be strength-
        licitor general’s office for supporting      cause of their gender, for example, and     ened at colleges and universities in
        Ms. Rowley’s claim in the Supreme            offered new opportunities to girls and      Mississippi, his work was mostly a
        Court. He described the statute as           women in athletics.                         resumption of his campaign against
        “vague, mandating only a ‘free appro-           Pragmatists in Congress and in the       extending remedies for civil rights
        priate education.’” He referred to Jus-      executive branch recognized that there      violations.
        tices Brennan and Marshall as “the ac-       was no practical way to limit the im-
        tivist duo” who used the government’s        pact of federal funds to the particular
        brief to support “an activist role for                                                      Damages for Sexual Harassment
                                                     departments or offices that received
        the courts,” adding that it took a con-      those funds. Money was fungible and         In 1991 a case involving a student’s
        servative majority of the Supreme            to the extent that discrimination existed   claim against a school district for its
        Court to turn back an “effort by ac-         anywhere in an institution, federal         failure to prevent or redress her having
        tivist lower court judges. . . .”            funds could facilitate that discrimina-     been sexually harassed by one of its
           Several things are worth mentioning       tion. So for years federal administrators   teachers reached the Supreme Court.
        about this memo. Roberts calls the dis-      treated the entire public university or     The question was whether the student
        ability statute vague, while previously,     school system as the recipient of the       should have a right to recover compen-
        in supporting the court-stripping legis-     federal funds. These could be with-         satory damages for the violation of
        lation, he was willing to describe bus-      drawn if discrimination against women       Title IX. The federal government ar-
        ing in sweeping and inaccurate terms         was shown. When after years of wide         gued that although the statute created
        as a “failed experiment.” He did not         acceptance a lower federal court re-        an implied right of action for victims of
        take on the nuanced questions that           jected that view in 1982, John Roberts      discrimination to sue, there could be no
        faced the Court in the Rowley case.          urged that the decision not be appealed.    implied right to recover damages.
        How does one balance the value of            “Under Title IX federal investigations         The solicitor general’s brief, signed
        translators in improving a deaf stu-         cannot rummage wily-nily [sic] through      by Roberts and others, said that al-
        dent’s skills against their potentially      institutions,” Roberts wrote to Attor-      though the United States was not a
        high costs? On what basis does one           ney General Smith,                          party in the case, it had a strong “inter-
        conclude that a disabled student is en-                                                  est in assuring that private remedies do
        titled to aid to help her reach an arbi-       but can only go so far as the federal     not unduly interfere with . . . programs
        trary level of proficiency but no more?        funds go. . . . The women’s groups        [funded by Title IX].” Of course, Title
        Roberts deflects all of this, and tends        pressuring us to appeal would have        IX was designed specifically to “inter-
        to rely on labels. The word “activist”         regulatory agencies usurp power           fere” with such programs if they in-
        appears three times in two sentences.          denied to them by Congress to             volved discrimination.
                                                       achieve an anti-discrimination goal.         A unanimous Court, including Jus-
              Women and Discrimination                  Roberts’s view ultimately prevailed      tices Scalia and Thomas, upheld the
        Roberts’s campaign against remedies          in the Supreme Court in Grove City          student’s claim. Roberts was thus
        for sex discrimination also began in         v. Bell (1984). But Senator Ted Ken-        defeated for the second time in his
        1982. The issue was how to interpret         nedy and other Democratic and Re-           efforts to limit protections against
        Title IX of the Education Amendment          publican leaders, startled by the de-       instances of sex discrimination that
        of 1972, which had become invaluable         cision’s crabbed interpretation of civil    were federally subsidized, the first
        for fighting sex discrimination on           rights law, reinstituted the broader        time by Congress and then by a unani-
        America’s college campuses. The basic        construction with the Civil Rights          mous Court.
        precept of Title IX was the same as          Restoration Act of 1988, which had
        that of Title VI of the 1964 Civil Rights    the effect of increasing the powers of
                                                                                                            Ending School
        Act, which barred federal agencies           the government to penalize discrim-
                                                                                                         Desegregation Decrees
        from subsidizing racial discrimination.      ination against women. Roberts was
        John Kennedy had stated the rationale        not done, however, with initiatives to      Roberts had better luck in two efforts
        eloquently:                                  limit redress for victims of sex            to persuade the Supreme Court to
                                                     discrimination and returned to the          allow school districts to bring to an
          Simple justice requires that public        issue when he joined the solicitor gen-     end their obligations under Brown v.
          funds to which all races contribute        eral’s office.                              Board of Education to establish and


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        maintain desegregated school systems.        branch, has a unique responsibility         sures in Congress. But Roberts op-
        In a case from Oklahoma City, Solici-        to guide the Supreme Court to the           posed a law that would prevent the di-
        tor General Starr, while acknowledg-         “right” result in cases before them (a      lution of newly won minority voting
        ing the Supreme Court’s previous rul-        responsibility that has led some to dub     rights. And his record is bare of any
        ing that school segregation practices        the office “the tenth justice”). At least   other constructive suggestions to
        had helped produce racially segre-           three times in the past, solicitors gen-    protect those rights. Indeed, in a
        gated housing, suggested that the rela-      eral have refused to participate in         brief opposing policies of the Federal
        tionship was too tenuous to justify          cases where they believed the policies      Communications Commission to in-
        continued court supervision. In the          they were directed to follow by the         crease minority ownership of radio and
        second case, involving DeKalb County,        administration were wrong. That was         broadcast stations, Roberts and his col-
        a suburb of Atlanta, the question was        not a dilemma faced by John Roberts.        leagues in the solicitor general’s
        whether a school district could be           Indeed in several civil rights cases his    office said Congress could mandate
        freed from its obligations piecemeal,        briefs were merely extensions of poli-      such policies only if it met rigorous
        that is, if it complied with some but        cies he had advocated in his previous       standards in setting forth the facts to
        not all of the elements of a desegrega-      stints at the Justice Department and        justify the policies. This was not an
        tion decree. The solicitor general’s         the White House. Indeed, in the un-         issue that troubled him when he was
        brief answered affirmatively, following      likely event that Roberts had changed       arguing for court-stripping bills. While
        Roberts’s previous approach that it          his mind on a policy, and the expressed     the solicitor general’s brief did not
        was possible to consider civil rights        views in the case were dictated by So-      find an adequate congressional basis
        violations individually. In both cases,      licitor General Starr, Roberts could        for appealing the FCC policies, a di-
        a divided Supreme Court agreed with          simply have refrained from signing the      vided Court did.
        the solicitor general. Thus the school       briefs.                                        Nowhere is there a statement of the
        district could satisfy its obligation to                                                 values that animate Roberts’s appar-
        hire both black and white teachers but       T   he record made by John Roberts          ent belief that government should play
        could be released from that obligation       in his decade of public service clearly     only the most limited part in helping
        even if the school district was not fully    documents his single-minded focus           or protecting people. From the record
        desegregated.                                on limiting legal protections and op-       we have,* we can only conclude that
           Justice Thurgood Marshall said in         portunities for African-Americans,          there is not a large space in his thinking
        dissent that the desegregation order         Latinos, alien children, people with        for Madison’s concerns about the dan-
        should not be lifted “so long as condi-      disabilities, women, and others. How is     gers of dominant majorities or the con-
        tions likely to inflict the stigmatic in-    one to account for his hostility to civil   cerns in the Bill of Rights for the rights
        jury in Brown I persist and there re-        rights?                                     of minorities to speak, assemble, and
        main feasible methods of eliminating            “Judicial restraint,” the usual expla-   practice their religion.
        such conditions.” Nowhere in the gov-        nation conservatives give for opposing         It is doubtful that Justice Roberts will
        ernment’s brief is there a recognition       court decisions that expand rights or       be guided by Justice Harlan Stone’s fa-
        of these conditions — of the isolation,      remedies, is a phrase rarely used by        mous footnote in the Carolene Prod-
        humiliation, and denial of opportunity       Roberts except when he makes a fa-          ucts case:
        that segregation inflicted or the need       vorable passing reference to it in his        Prejudice against discrete and in-
        to take practical steps to remedy them.      memos. One will search in vain in his         sular minorities may be a special
           Some have said that Roberts’s views       writings for a thoughtful discussion of       condition which tends seriously to
        expressed in government briefs during        the kind Justice Felix Frankfurter fre-       curtail the operation of those po-
        his time in the solicitor general’s office   quently engaged in, seeking to balance        litical processes to be ordinarily
        should not be held against him be-           the need for restraint against asser-         relied upon to protect minorities
        cause he was “just a lawyer represent-       tions of important interests and rights.      and which may call for a corre-
        ing a client.” While that view may           The omission is particularly glaring          spondingly more searching judi-
        be persuasive when it involves law-          since Roberts has supported the ac-           ciary inquiry.
        yers who were civil servants in that         tions of the Supreme Court in striking
        office and were bound to follow gov-         down acts of Congress that provided         It is possible of course to articulate a
        ernment policy if they wanted to hold        remedies for violence against women,        very different kind of vision of this
        on to their jobs, it is unconvincing in      and that barred the sale of handguns
        the case of John Roberts. He held the        near public schools as exceeding con-       *The record on the other side is al-
        number two position in the office —          gressional power under the commerce         most bare. It consists of his handling
        principal deputy solicitor, popularly        clause.                                     of a few pro bono cases, one of them
                                                                                                 involving public assistance benefits
        known as the “political deputy.” He was         Worse still, if Roberts believed in
                                                                                                 that had been denied in the District of
        a policy maker, not a policy follower.       the need for the protection of civil and    Columbia. He also participated in a
           There is another reason why Roberts       constitutional rights but thought the       preparatory session and gave other ad-
        should be held accountable for his ac-       courts were the wrong place to argue        vice to help lawyers arguing for recog-
        tions in the solicitor general’s office.     for them, he was in a position that en-     nition of gay rights in the Supreme
        That office, while part of the executive     abled him to urge new legislative mea-      Court.

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        country — one in which everyone fends        in the right schools. Unless we be-       a fairly cloistered life and then turned
        for himself and government is limited        haved very stupidly, the family and       out to be judges powerfully in touch
        to defending citizens against foreign        institutional support systems guar-       with the world. Justice David Souter
        enemies and crime. But that is not the       anteed a place for us. We benefited       comes to mind.
        vision contained in our founding docu-       from a racial spoils system.                 David Broder noted of Judge
        ments or in our history over the past        One suspects that Roberts will avoid      Roberts, “You can search his record
        seventy-five years. To articulate such a   this portrayal during his confirmation      in vain for examples of his sensitivity
        vision, Roberts would have to find a       hearings. But the question remains          to the impact of the law on people’s
        persuasive response to an observation      whether he can do so convincingly.          lives.” There can be no doubt that
        that Congressman Don Edwards made          Senator Arlen Specter said before the       in the hearings Roberts will be a
        to Roberts’s comrade-in-arms William       nomination that “it would be useful . . .   good advocate for himself as he has
        Bradford Reynolds at a hearing in          to have somebody. . . who’s been out in     been for others. But in the end it is
        1981:                                      the world and has a more varied back-       the record that counts, and the record
          You and I are white male attor-          ground” than just that of a career          is damning.                            I
          neys. We come from families with         lawyer or jurist. Of course, there have
          some money and were educated             been previous nominees who have led                            — September 8, 2005




        October 6, 2005                                                                                                              6