Ed Team

Roberts On Advocacy for Gay Rights

Filed By Ed Team | August 04, 2005 5:54 AM | comments

Filed in: Politics

(In the Star. Could be encouraging. - CHD)

Roberts worked on gay-rights case
Los Angeles Times

WASHINGTON -- Supreme Court nominee John Roberts worked behind the scenes for a coalition of gay-rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people against discrimination because of their sexual orientation.

Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay activists as part of his law firm's pro bono work.

While he did not write the legal briefs or argue the case before the Supreme Court, he was instrumental in reviewing the filings and preparing oral arguments, according to several lawyers intimately involved in the case.

The coalition won its case, 6-3, in what gay activists described at the time as the movement's most important legal victory. The three dissenting justices were those to whom Roberts is frequently likened for their conservative ideology -- Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

Roberts' role working on behalf of gay activists, whose cause is not favored by many conservatives, appears to illustrate his allegiance to the credo of the legal profession: to zealously represent the interests of the client.

There is no other record of Roberts' involvement in gay-rights cases that would suggest his position on such issues. He has stressed, however, that a client's views are not necessarily shared by the lawyer.

The lawyer who asked for his 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," Smith said.

Roberts did not mention his work on the gay-rights 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.

But Smith said Wednesday that was probably 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.

More info here.

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AUTHOR: Anonymous

DATE: 8/04/2005 09:43:47 AM

Chris,Here's my take on this story. For the past couple of weeks the GLBT community has been lamenting that Roberts has no public record when it comes to gay civil rights. He had the opportunity in preparing his 67-page response to the Senate to identify all cases on which he participated, including pro bono cases. There is not one mention of his work on the Romer v. Evans case. In fact, no attorneys of his several hundred attorney law firm are listed on the case filed with the Court. Whatever advice he may have given, is quite removed from the actual participants on the GLBT side. I venture to guess that it will come as a surprise to those who actually participated in the case, since noone had recalled his involvement to date.Secondly, I would note that he spent a paragraph of his 67-page response to the Senate explaining that he was not a member of the Federalist Society. Interestingly, he admitted he had moderated a panel discussion for the group. Typically, the organizing group has one of its own members serve as the moderator--it is the participants on the panel who may or may not be members. It is clear to me that this story in the LA Times was simply contrived to head off likely opposition from the GLBT community to his nomination. I'm not going to be fooled by it.Gary R. Welsh

AUTHOR: Chris Douglas

DATE: 8/04/2005 05:15:08 PM

Interesting. I would tend to have a different take. I wouldn't think the Senate or the Adminsitration would care much about placating the gay community. To the contrary, I think this report will raise questions with the religious right that they would prefer not to see raised. Rather, I think such pro bono contribution to a gay rights case was avoided in the 67 pages because of the red flags it raises with the religious right. I would tend to take the article at face value until it becomes apparent that it conflicts with other information. Regarding the federalist issue, I have not been of a mind particularly to defend him, except I made a mental note that I would find it credible if he said he had no recollection of that steering committee. Lots of organizations are quick to claim prominent members in order to establish legitimacy, and the Federalists could very easily have gotten sloppy and claimed someone without actually closing the loop or by hearing what they wanted to hear. For instance, when the Rainbow Chamber established, I can recall one individual, a banker, who we thought had given us his okay to be on the board of advisors, only to find him panicked when we did so on a piece of literature. Regarding moderating a panel, I've moderated too many discussions, and seen too many discussions moderated by third parties, to find that too significant.The pro bono assistance in a gay rights action, if true, came 15 years or so after the cocky, arrogant Reagan conservative. I don't find that development difficult to believe. To the contrary, the personal enthusiasm to jump in vigorously does seem consistent with the personality of 20 years before, though matured. (Peoples opinions and beliefs can change with experience.... personality tends not to age.)At this point, I think the jury is still out on Roberts. That Roberts is or would be anti-gay rights remains in my view unproven. And we now have a piece of evidence to the contrary. I look forward to further revelations and to his questions and answers as he progresses into hearings.

AUTHOR: Marla R. Stevens

DATE: 8/04/2005 05:24:40 PM

I've often given those 'on the other side' basic information, particularly on process, in a collegial fashion or actually aided cases, such as when I filed a statement on behalf of the KKK's right to demonstrate at the Indiana statehouse, when I thought higher principles were involved.Gary's right. It's what I would do if I were pushing Roberts' nomination. That he gave a bit of very, very basic advice does not indicate how he would rule.

AUTHOR: Marla R. Stevens

DATE: 8/04/2005 05:29:53 PM

One more thing...Like Tribe's obvious kissing up, I wouldn't put it past any attorney admitted to practice before the Supremes to do a bit of strategic gushing with an eye to the future about someone everyone seems to think has a lock on the job.

AUTHOR: Chris Douglas

DATE: 8/04/2005 06:03:50 PM

Well, Marla, in this case you are observing that where higher principles are involved, you could find yourself with odd bedfellows. If the report is true, then in your comment you are placing Roberts potentially in the same class as yourself through his lending support for the higher principles of our constitutional rights over some personal conservative predisposition to the contrary. (And we have no evidence whatsoever thus far of a homophobic tendency in Roberts to my knowledge.) It seems to me that such a justice might be not only the best we could hope for from a Bush nominee, but not necessarily a bad justice on our equal protection issues at all. To be seen. Further revelations are welcomed. Its not clear to me that an attorney would be earning points with Roberts for gushing that he is comfortable with gay rights if, in fact, he is not. For that gush would only produce turmoil for Roberts by raising red flags from the religious right.

AUTHOR: Anonymous

DATE: 8/04/2005 06:14:11 PM

Chris,Let's be clear on this. The attorney did not claim that Roberts said he supported gay civil rights. He was asked by a colleague in his law firm, who was assisting the coalition in its efforts to overturn the Colorado law, to speak to the attorney who was making the oral argument. He was asked because he had so much experience arguing cases before the Supreme Court. He, without charge, met with her and gave her a number of practice pointers which proved helpful to her. She noted that he was right on as to the line of questioning she would get from Scalia (although it certainly didn't help change Scalia's vote). He didn't write the brief, or any way enter an appearance on behalf of the coalition. Attorneys do this sort of thing all the time out of collegiality. It does not mean they share any particular view, particularly those for whom they are giving advice. If you had worked in a big law firm as I have, I think you would appreciate what I'm saying a little better.Gary Welsh

AUTHOR: Marla R. Stevens

DATE: 8/04/2005 06:19:56 PM

Chris:It's possible that they wanted to avoid the RPEs but it's more likely that they were reserving it for just this occasion -- that Roberts didn't think it important -- that it was just a minor flyspeck sort of thing he did in passing and didn't consider actual work product but that RoveCo saw it for the little windfall it is. Many gullible queers will take the bait on this one and, although you're correct that RoveCo couldn't care less about us, they're mindful of Republicrats like Bayh who're running for higher office and are forced, mostly against their will, to care about us at least titularly. They'll be all too happy to have the excuse that this case gives them to ignore what ought to be our real concerns regarding Roberts.Keep repeating to yourself that this was engineered by the most competent, evil-minded collection of political operatives since Machiavelli dined alone, to mangle a few metaphors. The only thing that pays with RoveCo is the hardest, rawest cynicism we can muster. I'm begging you to take off the rose-colored glasses, please.While I don't doubt your experience about the moderating, I think Gary's more likely to be on the money here. After all, he was a member of the group and knows its practices and the practice of using a group's staff member or member as a moderator is the norm in those circles in D.C.Regarding personal growth and change affecting this, I think you're extending a theoretical possibility a bit far. If he hadn't reverted so much to form as an appellate judge, I, too might be saying that his pro bono work might have taught him life lessons he might have missed in his privileged, white bread life. But his rulings have been so predictably lockstep since his appointment that I just can't extend him that benefit of the doubt.Chris, the record, as has been repeatedly noted, is thin so we're not going to have proof of the sort you want until after he's a Supreme and starts ruling. Then it will be too late. My proof is that RoveCo is evil and more than competent and wouldn't screw up the way they did on Souter twice. They've been prepping this one since the first term and they've had more than ample opportunity to get it exactly the way they want it. I'm hoping that I'm wrong but I'm not willing to stake my freedom on it. Why are you?

AUTHOR: Marla R. Stevens

DATE: 8/04/2005 06:53:44 PM

At a practical level, none of this changes what needs to be done, which is to insist that the Senate pin Roberts' Texas two-stepping little self down on his judicial philosophy to the point that it can be reliably predicted what he thinks about the judiciary's role in interpreting the Constitution, what he thinks about the Constitution itself -- particularly the notion of a dynamic Constitution, and if he respects the Constitution as an extension of the Declaration that includes the penumbral rights. If the answer to all of those is yes, then I can't imagine how he got nominated in the first place and, if the answer to any of them is no, then we're in deep trouble if he's confirmed.To successfully insist is going to be almost impossible, so we have to quit getting sidetracked and get crackin'.

AUTHOR: Marla R. Stevens

DATE: 8/04/2005 07:42:52 PM

Chris -- You ignored the collegiality half of my personal experience sentence but, in your defense, I could've expressed it more clearly.As for the not having direct evidence of Roberts being a 'phobe or otherwise likely to make antigay rulings, again, you're not likely to get it. If today is any example, you'll be fed non-evidence to the contrary smokescreen fashion. And, unless the sheep start unionizing against their pastors, you won't see much of the reassuring of the RPE faithful that goes on behind the scenes, what little of that there is because they know a good thing when they see it. For one thing, it's already happened.Frankly, I think your standards are not high enough here. What we need is not absence of direct evidence of the bad but should instead expect, given the nominator's foul history with us (in things like reaffirming the Carter-era executive order about nondiscrimination in federal employment then appointing to the job of its enforcer someone who clearly states to Congress that he will not, FMA support, DADTDP repeal opposition/stop loss hypocrisy, screwing AIDS prevention funding with every RPE wacko idea about human sexuality possible instead of supporting good medicine or basic science, filing as an amicus on behalf of Texas in Lawrence ... need I go on?), that ShrubCo'd be happy with a nominee who'd reflect that in his decisions. What we thus need is to be assured in very direct terms that Roberts thinks us fully and equally human and entitled to the full and equal protection of the law. Anything less than that is just not enough.Am I expecting that I'll get it? Let me put this in terms I know you'll understand the nuances of better than all but a rare few: about the same as the PRC negotiates in good faith -- read the fine print very, very carefully.

AUTHOR: Chris Douglas

DATE: 8/05/2005 09:42:57 AM

Marla & Gary:I'm not saying I'm satisfied about Roberts in any way. I am saying that we need to know more. You're saying (it seems to me) that the clouds obscure a homophobe or one who will be such on a practical level; I'm saying we still don't know. I DO know that I have had enough experience with Republicans who have been moved to heightened levels of support (however inadequate still), (Rokita, Keller, and Daniels) and who have subsequently adhered to both their private and public assurances, to know that charges of trickery were misplaced. I don't say that Roberts is a friend or foe; I do say that the arguments that he is a foe on the topic of gay rights are so far not compelling, and possibly wrong. I welcome more arguments and revelations. On a practical level, in the absence of pressure producing compelling evidence one way or the other, (and I encourage pressure), we will in my opinion see confirmation and no other outcome, whatever the level of opposition we may attempt to mount. If the interest is in derailing his nomination, then much more powerful evidence one way or other is going to have to be found; I make this observation as a matter of brutal fact, not in support of Roberts. I'm entirely sympathetic to every aspect of the gay rights cause, obviously, and the arguments have so far not achieved a level persuasive to me. I don't discourage you from continuing to develop them.