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September 14, 2005
John Roberts, You're No John Adams.
Consider these excerpts:
ROBERTS: The memo you refer to -- I was working in the White House Counsel's Office then. The White House Counsel's Office is charged to be vigilant to protect the executive's authority, just as you have lawyers here in the Senate and the House has lawyers who are experts and charged with being vigilant to protect the prerogatives of the legislative branch.
* * *
ROBERTS: Senator, you will recall, at the time -- this was 23 years ago -- I was the staff lawyer in the Justice Department. It was the position of the Reagan administration for whom I worked, the position of the attorney general for whom I worked, that the Voting Rights Act should be extended for the longest period of its extension in history without change.I was a lawyer on his staff. According to this memorandum -- and again, I don't remember anything independently of this 23 years ago. But the memorandum suggests that to a staff lawyer to his boss that this is inconsistent with what you have said. Again, I guess I would regard that as good staff work rather than anything else.
* * *
BIDEN: What was your position on Reagan's civil rights chairman, Clarence Pendleton, suggesting that we appeal the decision of the circuit court, narrowly applying it only to the admissions office?ROBERTS: Senator, I was a staff lawyer. I didn't have a position. The administration had a position, and the administration's position was the two-fold position that you set forth.
* * *
ROBERTS: Well, I think so, Senator. The position that you're reading from there was the position of the administration. I was one of nine lawyers on the brief in that case. It was reflecting the position that had been advanced in four prior cases, up to that point, by the administration.My view in preparing all the memoranda that people have been talking about was as a staff lawyer. I was promoting the views of the people for whom I worked. And in some instances those are consistent with personal views. In other instances, they may not be. In most instances, no one cared terribly much what my personal views were. They were to advance the views of the administration for which I worked.
* * *
ROBERTS: Senator, you keep referring to what I supported and what I wanted to do. I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships. I was not shaping administration policy. The administration policy was shaped by the attorney general, on whose staff I served. It was the policy of President Reagan.
Now hold on a second. I understand perfectly well that no lawyer has absolute control over his or her caseload, and that when young lawyers sign up to work at the local public defender's office or the county D.A.'s office or the big litigation firm downtown, they don't have a lot of say over which cases come their way. (This was certainly true for me in private practice at a mid-size NYC litigation firm and in the Appeals Division at the U.S. Attorney's Office in NJ--though there I did decline to work on a death penalty case that was in the office at the time.)
But we are talking here about a man who left a clerkship with then-Associate Justice William Rehnquist to become a Special Assistant to the Attorney General of the United States under President Reagan, and who left that position to join the White House staff as Associate Counsel to the President.
These are no ordinary "staff attorney" positions. Nobody gets jobs of this sort just by being a talented young lawyer (as they do at the D.A.'s office, the Public Defender's Office, or the litigation firm downtown). These are, in their nature, ideological positions.
And let us not forget that even the talented young D.A.'s and public defenders and law firm associates sometimes tire of the legal positions their jobs require of them, or the clients their jobs foist on them, and leave for a different line of work. John Roberts has done nothing but be offered, and then accept, internal promotions.
I vividly remember a poster on the walls of Yale Law School announcing some sort of meeting or discussion about career options. "A Lawyer Is Not A Taxi," it said. The role of the lawyer is not simply to take paying passengers wherever they want to go. This is especially true for those of us fortunate enough to have attended schools like Yale and Harvard (Judge Roberts' alma mater); most of us graduate with lots of options and the ability to make choices about what we want to do and what and whom we wish to represent.
Judge Roberts compared himself to John Adams yesterday:
ROBERTS: You know, it's a tradition of the American bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients. The most famous example probably was John Adams, who represented the British soldiers charged in the Boston Massacre. And he did that for a reason, because he wanted to show that the revolution in which he was involved was not about overturning the rule of law, it was about vindicating the rule of law. Our founders thought that they were not being given their rights, under the British system, to which they were entitled. And, by representing the British soldiers, he helped show that what they were about was defending the rule of law, not undermining it. And that principle, that you don't identify the lawyer with the particular views of the client, or the views that the lawyer advances on behalf of a client, is critical to the fair administration of justice.
An odd analogy: Ronald Reagan and William French Smith were the Redcoats, I guess, and the young John Roberts was defense lawyer John Adams. John Adams was trying to demonstrate something about the American revolutionaries' adherence to the rule of law.
What was the principle John Roberts was trying to demonstrate?
Posted by Eric at September 14, 2005 8:26 AM
Comments
That under a properly British code of ethics, lawyers are taxis?
Posted by: Simon Spero at September 14, 2005 12:12 PM
John Roberts says that he "just followed orders," in a sense. Eichmann used the same logic and language at his defense.
Posted by: RedWolf at September 14, 2005 12:15 PM
We all know we're getting another Scalia- an activist ideologue.
It's funny to read the transcripts: Roberts won't answer questions about how he'd rule in particular cases. He also won't answer hypotheticals that tread too closely to particular cases. He won't allow any inference about his legal opinions to be drawn from his previous released work.
The only questions he'll answer are complete generalities. Yes, he believes that their is a constitutional right to privacy, but he won't say what that right covers. Yes, he believes that the President is barred from unconstitutional conduct, but he won't say is or is not constitutional. Etc.
How is the Senate supposed to Advise and Consent based on this pap? Ah, well, hopefully they'll do a more thorough job when O'Connor's replacement is selected.
Posted by: Carleton Wu at September 14, 2005 1:54 PM
Surely you couldn't have forgotten the controversy that threatened to overwhelm the Reagan administration in its early days. Repeated airings of "Bedtime For Bonzo" had created massive public outrage against the new president. Even the normally sedate ABA got into the act, issuing a statement to the effect that anyone who allowed himself to be upstaged by a chimp didn't deserve legal representation. For a time it seemed that Reagan would have to serve out his entire term without a staff lawyer, but finally a young attorney named John Roberts found the courage to defy public opinion. "Legal representation," he famously said, "is the right of all citizens, no matter how mediocre their acting." Today we take Tom Cruise's lawsuits and Arnold Schwarzeneger's legal team for granted, but if it hadn't been for pioneers like Roberts, such things would not have been possible.
Posted by: Beth at September 14, 2005 2:11 PM
I'm not a lawyer, but I have to ask what youu woould have had Roberts do. Yes, he must have felt that some of Reagan's policies had merit, or he wouldn't have gone to work for him, but once he took the president's shilling, it seems to me that he was obligated to do the best job for his boss that he could. The fact that he took this seriously should be a point in his favor.
Posted by: Joel at September 14, 2005 2:39 PM
My sense was that Roberts was merely using the Adams example to show that positions a lawyer takes on behalf of clients should not necessarily be taken as representing the lawyer's own view.
Posted by: John Stuart at September 14, 2005 3:49 PM
Geez Red. I think you may win this week’s prize for “Most Gratuitous Invocation of Godwin’s Rule by Someone Other than an IndyMedia Commenter.”
Don’t get me wrong. I’m not knockin it. To launch a non-sequitur like that which is breathtakingly and perfectly out of the blue, that’s quite impressive. It’s like saying “Man, I saw Chuck Schumer drinking some Folgers this morning, and that’s when it struck me… Hell. Hitler drank coffee too.”
Well, I gotta run off and go walk my dog now.
Yep, that’s right, Red. Just like Hitler, who *loved* dogs.
On the other hand, maybe you actually believe everybody to the right of you is in essence a member of the Liebstandarte Adolf Hitler, so perhaps it wasn’t out of the blue at all for you to compare Roberts to Eichmann.
Posted by: Al Maviva at September 14, 2005 4:02 PM
> But we are talking here about a man who left a
> clerkship with then-Associate Justice William
> Rehnquist to become a Special Assistant to the
> Attorney General of the United States under
> President Reagan, and who left that position to
> join the White House staff as Associate Counsel to
> the President.
Roberts is essentially a mole, albeit one hiding in plain sight. He was placed 15 years ago specifically to wait for this time and this job. Now the job has arrived, and Roberts is fully prepared. Surprise.
Or, as Atrios says, a Made Man(tm).
Cranky
Posted by: Cranky Observer at September 14, 2005 5:43 PM
Roberts is smooth, like the home-made chocolate pudding my grandmother made.
That, and $1.58 will get you a Starbucks tall coffee of the day.
The real question is -- and has been from the start -- whether the Senate Democrats will have the courage of John Adams and vote "no" because Roberts wouldn't answer questions the American people are entitled to have answered. (I don't include Ben Nelson of Nebraska in this group, who's got a spine comparable to the one Teddy Roosevelt described when talking about Oliver Wendell Holmes, Jr.).
Posted by: marietta at September 14, 2005 5:54 PM
What did you expect him to do? Demand an appointment with Reagan and have it out, because he didn't 100% agree with the adminstration. He did the same thing you did as a staff lawyer. He did his job and advanced the interests of his employer. What were his other options? Join the unemployment line? That's were an employee ends up that doesn't like to do his job, lawyer or not. Irregardless if he clerked for Rehnquist or not.
Posted by: slam smith at September 14, 2005 6:00 PM
Save your hand-wringing for real issues. Why is everyone surprised that a conservative president would appoint a conservative member of the bar to the Supreme Court?
Would we be hearing these strangulated cries of woe if this had been a liberal candidate appointed by a liberal president?
Of course we would, just not by the same people.
Quite frankly, though Judge Roberts and I differ significantly over many issues, I believe he is an honorable man. I would vote for him because the alternative candidates scare the hell out of me.
Posted by: David Marshall at September 14, 2005 7:56 PM
For an even better example of utter abdication of any moral responsibility for one's actions, read the exchange with Durbin today.
Posted by: Katherine at September 15, 2005 12:22 AM
Roberts' suggestion that he was a mannequin or a cipher, or both, is hugely self serving, and cannot possibly be true. With these kind of fatuous answers, he does not deserve a position of public service whatsoever. Can he really be so arrogant that he believes intelligent listeners will accept these answers?
Posted by: Paul at September 15, 2005 3:46 PM