WASHINGTON (BP)–Supreme Court nominee John Roberts told senators Sept. 15 that although he provided pro bono work for homosexual groups in the landmark Romer v. Evans decision, he “probably” would have assisted the other side in the case if approached with that opportunity first.
Some social conservatives have expressed concern that Roberts donated several hours of work to assist homosexual groups in the 1996 case, in which the Supreme Court struck down a Colorado constitutional amendment that had prevented homosexuality from being given civil rights status. At the time Roberts was working as an attorney with a Washington law firm.
The head of the firm’s pro bono department asked for Roberts’ assistance in the case.
Earlier in the week Roberts told senators that he “never turned down” a pro bono request. On the final day of questioning Sept. 15, Roberts was asked by Sen. Richard Durbin, D.-Ill., if he would have represented the state of Colorado in defending the amendment if the state “had come to you first.” Durbin supported the Romer decision.
“It’s a hypothetical question, of course. I think I probably would have, senator,” Roberts said. “I actually have done pro bono assistance for states on a regular basis through the national association of attorneys general.
“… It has not been my general view that I sit in judgment on clients when they come to me. I view that as the job of the court.”
Roberts, who would be the nation’s 17th chief justice if confirmed, currently is serving on the U.S. District Court of Appeals for the D.C. Circuit. Prior to that, he served as a private attorney.
Durbin said Roberts’ answer “raises the question about where” he would “draw the line” in representing clients. Durbin wondered whether Roberts would have represented segregationists in Brown v. Board of Education, the 1954 case that ended legal segregation in America.
Roberts, though, said as an attorney he was not a “hired gun.”
“I think that’s a disparaging way to capture what is in fact an ennobling fact about our legal system, that lawyers serve the rule of law — above and beyond representing particular clients.
“… If the Constitution says that the little guy should win, the little guy’s going to win in court before me. But if the Constitution says that the big guy should win, well then the big guy’s going to win. My obligation is to the Constitution.”
Although only two rounds of questioning originally were scheduled, the committee went into a third round Thursday. Only a handful of senators — mostly Democrats — used the extra time. Twenty minutes were allotted for the final round, which concluded Thursday morning. The committee was scheduled to hear from outside witnesses beginning Thursday. A committee vote is expected Sept. 22.
Sen. Charles Schumer, D.-N.Y., said he was disappointed in Roberts’ “refusal to answer so many of our questions.”
“I know you feel you were more forthcoming than most any other nominee to the high court,” Schumer said. “I must disagree. … Most answered more relevant questions than you did. … What we need to know are the kinds of things that are coming before the court now, and it makes it hard to figure out what kind of justice you will be — particularly in light of the fact we have little else to go on.”
Schumer added: “You did speak at length on many issues, and sounded like you were conveying your views to us. But when one went back and read the transcript each evening, there was less than met the ear that afternoon. Perhaps that’s the job of a good litigator, but in too many instances it didn’t serve the purpose of the hearing.”
Roberts said he had “tried to be as fully responsive as I thought consistent with my obligations as a sitting judge and a nominee.” He also noted that in every Supreme Court confirmation hearing, senators want more information than they get.
“You have 50 opinions,” Roberts said, referring to his brief time on the circuit court. “You can look at those. … I don’t think you can read those opinions and say that these are the opinions of an ideologue. You may think they’re not enough. You may think you need more of a sample…. But I think if you’ve looked at what I’ve done since I took the judicial oath, that should convince you that I’m not an ideologue.”
Throughout the hearings Roberts repeatedly said he believes judges have a “limited” role.