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9/22/2017 12:11:25 AM
Posted: 8/4/2005 7:57:07 AM EDT
[Last Edit: 8/4/2005 8:07:01 AM EDT by green-grizzly]

WASHINGTON — 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.

There is no other record of Roberts being involved 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 who argues on his or her behalf.

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."

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."

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.

"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.

When Dubofsky appeared before the justices, Scalia did indeed demand specific legal citations from the lower-court ruling. "I had it right there at my fingertips," she said.

"John Roberts … was just terrifically helpful in meeting with me and spending some time on the issue," she said. "He seemed to be very fair-minded and very astute."

Dubofsky said Roberts helped her form the argument that the initiative violated the "equal protections" clause of the Constitution.

The case was argued before the Supreme Court in October 1995, and the ruling was handed down the following May. Suzanne B. Goldberg, a staff lawyer for New York-based Lambda, a legal services group for gays and lesbians, called it the "single most important positive ruling in the history of the gay rights movement."

In the blistering dissent, Scalia, joined by Rehnquist and Thomas, said "Coloradans are entitled to be hostile toward homosexual conduct." Scalia added that the majority opinion had "no foundation in American constitutional law, and barely pretends to."

The case was one of several Roberts worked on pro bono at Hogan & Hartson, a prominent Washington law firm that expects partners to volunteer time in community service.

In his answers to the Senate questionnaire, Roberts talked generally about his volunteer work.

"My pro bono legal activities were not restricted to providing services for the disadvantaged," he wrote, explaining that he often donated behind-the-scenes time and expertise on projects.

He said he participated in a program sponsored by the National Assn. of Attorneys General to "help prepare representatives of state and local governments to argue before the Supreme Court." He said that several times a year he reviewed briefs in "selected cases" and met with state or local attorneys in moot court before their Supreme Court appearances.

He also said he had worked with high school and college students and teachers "studying the legal system and the Supreme Court." And he said he had "actively participated on a pro bono basis in efforts to achieve legal reform."

Roberts personally handled two pro bono cases.

In the first, Roberts was asked by Rehnquist — for whom he previously had been a clerk — to represent a man who had been convicted of Medicaid fraud, sentenced to prison and fined $5,000. The federal government also had filed a civil suit in the case and won a $130,000 judgment.

In U.S. vs. Halper, Roberts' first appearance before the high court, he argued that adding a civil penalty to a criminal one was double jeopardy and therefore unconstitutional.

In 1989, the court agreed unanimously. Eight years later the court reversed itself, again 9 to 0.

The second case was a Washington, D.C., welfare case that involved about 1,000 residents who lost benefits when the city cut programs amid a budget crisis.

Roberts, representing homeless people and others who could not work because of illness or injuries, argued before an appellate court that the city had erred in not first formally notifying recipients about the change in benefits.

The court ruled against him in December 1995 in one of Roberts' few appellate losses.

According to others who worked on the case, Roberts asked the court to reconsider, then appealed to the Supreme Court. The high court declined to hear the case.

"Mr. Roberts was essentially the principal counsel," recalled R. Scott McNeilly, a staff lawyer with the Washington Legal Clinic for the Homeless. "He was very involved."

When the welfare recipients lost in the courts, McNeilly said, most "were put out on the streets. They lost the money they were using to take the bus to see a social worker or money they were paying to a friend to sleep on his couch."

In the questionnaire, Roberts described them as "the neediest people" in Washington.


Personally, I could care less whether he supports "gay rights" or not, but I do find it distrurbing that he was happy to use the constitution to create new rights out of the "living constitution." If he feels comfortable creating some rights that are not in there, he is probably going to be just as happy deleting others specifically provided for.

ETA: Link to article.

The Supreme Court case in question was Romer v. Evans. The Colorado constitution had prevented municipalities from declaring homosexuals to be a protected class, which the supreme court decided violated the 14th amendment.
Link Posted: 8/4/2005 7:58:24 AM EDT
Doesn't really surprise me.
Link Posted: 8/4/2005 8:00:54 AM EDT
[Last Edit: 8/4/2005 8:08:00 AM EDT by Leisure_Shoot]

Originally Posted By LUGERMAN:
Doesn't really surprise me.



Are there any constructionists left?


I don't care if he helps gays.
If they are being treated innappriately, that is wrong regardless of how you feel about their lifestyle.
I would help in that case, too.
However, to carve out new definitions from the Constitution is exactly what we were hoping to avoid with the next Supreme Court nominee.
Link Posted: 8/4/2005 4:06:32 PM EDT

Originally Posted By green-grizzly:
WASHINGTON — 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. <snip>

ETA: Link to article.

The Supreme Court case in question was Romer v. Evans. The Colorado constitution had prevented municipalities from declaring homosexuals to be a protected class, which the supreme court decided violated the 14th amendment.



I dunno, I could take this several ways... some could be very good, others could be very BAD.

I'm still "out" on him... don't know if he's MOSTLY a "good guy" OR mostly a "bad guy"... I'd like to see where he stands on FIREARMS.... THEN I could make up my mind if I was FOR or AGAINST his nomination....
Link Posted: 8/4/2005 4:08:02 PM EDT
Yeah, that's the LAST thing we want ... a Supreme Court Justice who believes in equal access to justice.
Link Posted: 8/4/2005 4:08:39 PM EDT
[Last Edit: 8/4/2005 4:09:12 PM EDT by raven]
So? Dick Cheney's daughter's a dyke. Is that supposed to make me break ranks because I'm such a horrible conservative homophobe?

Liberals wish.
Link Posted: 8/4/2005 4:12:14 PM EDT
Maybe Ann Coulter was right. The key here is that this is not just about whether someone likes gays or not. Romer was one of the biggest re-writes of constitutional law to ever come from the court. This indicates to me that he may be about as far from a strict constructionist as possible. I have the sinking feeling that we may be getting another Souter.
Link Posted: 8/4/2005 4:17:53 PM EDT
Link Posted: 8/4/2005 4:19:44 PM EDT

Originally Posted By green-grizzly:

Must be a Libertarian crank.

Thanks for carrying water for our LLLiberal enemies.
Link Posted: 8/4/2005 4:24:36 PM EDT

Originally Posted By happycynic:
Maybe Ann Coulter was right. The key here is that this is not just about whether someone likes gays or not. Romer was one of the biggest re-writes of constitutional law to ever come from the court. This indicates to me that he may be about as far from a strict constructionist as possible. I have the sinking feeling that we may be getting another Souter.



I don't see that. The decision said that the state could not pass an ammendment that specificly forbade a group to lobby for and pass laws that benifited them based on thier sexual orientation. I happen to agree with the court on that one. Equal protection means nothing if you tell an unpopular group they are forbidden from participating in the process of making law.

Maybe I'm missing something but that's what I saw in the case.
Link Posted: 8/4/2005 4:26:20 PM EDT

Originally Posted By Aimless:
He was an attorney advocating for a client, if he passed up on a potential winning argument because he felt it was wrong to "use the constitution to create new rights" he'd be a pretty crappy lawyer. Just because an attorney would argue for a position on behalf of a client does not mean that he would decide that way if he was acting as judge, instead of an advocate.




Pro Bono work is not usually done by lawyers for groups and casuses they don't believe in is it?
Link Posted: 8/4/2005 4:28:57 PM EDT

Originally Posted By Aimless:
He was an attorney advocating for a client, if he passed up on a potential winning argument because he felt it was wrong to "use the constitution to create new rights" he'd be a pretty crappy lawyer. Just because an attorney would argue for a position on behalf of a client does not mean that he would decide that way if he was acting as judge, instead of an advocate.




A partner at his level can pick and choose his pro-bono clients at will. I seriously doubt that he would have devoted that kind of time and effort if he didn't strongly believe in the cause.
Link Posted: 8/4/2005 4:35:33 PM EDT

Originally Posted By Grunteled:

Originally Posted By happycynic:
Maybe Ann Coulter was right. The key here is that this is not just about whether someone likes gays or not. Romer was one of the biggest re-writes of constitutional law to ever come from the court. This indicates to me that he may be about as far from a strict constructionist as possible. I have the sinking feeling that we may be getting another Souter.



I don't see that. The decision said that the state could not pass an ammendment that specificly forbade a group to lobby for and pass laws that benifited them based on thier sexual orientation. I happen to agree with the court on that one. Equal protection means nothing if you tell an unpopular group they are forbidden from participating in the process of making law.

Maybe I'm missing something but that's what I saw in the case.



The law has been regulating abnormal sexual relations such as that since time immemorial, both in this country and throughout western civilizations. Prior to Romer, there was never a behavioral trait that was considered an "equal right." Equal rights applies to qualities that one could not change about onesself - like race, gender and age, or to religion. Romer takes these bright line rules and trashes them. What's next. Are hippies a protected group if they wear tie-dyes? Moreover, from an originalist interpretation - which is what we need more of if we want to protect the 2nd amendment - is wholly incompatable with Romer. The founding fathers all served in governments that prohibited homosexuality and other abnormal sexual acts. Same with the generation of lawmakers who passed the 14th Amendment. The only way to reach the result reached in Romer is to adopt the "living constitution" view of constitutional interpretation.
Link Posted: 8/4/2005 4:39:14 PM EDT
[Last Edit: 8/4/2005 4:41:06 PM EDT by ShadowOne]
The way I see it, this may be evidence that Roberts doesn't rely on emotion for his job. If it's a case of protecting someone against discrimination regardless of whether or not he personally likes him/her, then that would seem like conservatism to me.

Then again, I do see the tendency to be a "constructionist" in there, as mentioned above.
Link Posted: 8/4/2005 4:40:12 PM EDT
Link Posted: 8/4/2005 4:42:11 PM EDT

Originally Posted By DzlBenz:
Yeah, that's the LAST thing we want ... a Supreme Court Justice who believes in equal access to justice.


Yeah, damn that 14th Amendment. Amendments are just the liberals' way to reconstruct the Constitution. Wait the 2nd is an Amendment...doh...
Link Posted: 8/4/2005 4:45:16 PM EDT
[Last Edit: 8/4/2005 4:51:38 PM EDT by Aimless]
Link Posted: 8/4/2005 7:46:16 PM EDT

Originally Posted By Aimless:
Maybe the ceo of their biggest client had a sister who was a big gay rights advocate? Maybe one of his partners felt strongly about the case? Lawyers take cases for lots of reasons. I think it's a stretch to draw any conclusions from this.

I found that Ann Coulter article and she argues that you can't trust his opinion on Roe v. wade because he was "just advocating for a client"


edit-from the sounds of the article he didn't do the research, write the brief or argue the appeal. someone else in the firm might have been hot to take the case on-when one of your partners asks you to look over a brief or discuss tactics for arguing an appeal "I'm not going to help you help those homosexuals" would be a pretty bizarre response.



Yeah... now if he wrote a PAPER that was "pro-gay" you could infer something.... but a case... case work? He's a LAWYER! That's what they DO! And typically, with little to no exception they "play to win" they TEND to not just "play to play" OR "play to lose" .... I'd LOVE to see a pro-gun PAPER he wrote... EVEN in "college" as long as the students could CHOOSE one side OR the other... THEN it would be telling....however if he was ASSIGNED a "side" he HAD to argue for in the paper - sttill a bit of a "who cares" .... as that's what he's SUPPOSED to do.

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