A decade ago, John Roberts played a valuable role helping attorneys overturn a law that would have allowed discrimination against gays — pro bono work the Supreme Court nominee didn’t mention in a questionnaire he filled out for the Senate Judiciary Committee.
The revelation could dent his popularity among conservative groups and quell some of the opposition of liberal groups fearful he could help overturn landmark decisions such as Roe v. Wade, which guarantees a right to an abortion.
An attorney who worked with Roberts cautioned against making guesses about his personal views based on his involvement in the Colorado case, which gay rights advocates consider one of their most important legal victories.
“It may be that John and others didn’t see this case as a gay-rights case,” said Walter Smith, who was in charge of pro bono work at Roberts’ former Washington law firm, Hogan & Hartson.
Smith said Roberts may instead have viewed the case as a broader question, of whether the constitutional guarantee of equal protection prohibited singling out a particular group of people that wouldn’t be protected by an anti-discrimination law.
“I don’t think this gives you any clear answers, but I think it’s a factor people can and should look at to figure out what this guy is made of and what kind of Supreme Court justice he would make,” Smith said.
Mock court session
The case involved Amendment 2, a constitutional amendment approved by Colorado voters in 1992 that would have barred laws, ordinances or regulations protecting gays from discrimination by landlords, employers or public agencies such as school districts.
Gay rights groups sued, and the law was declared unconstitutional in a 6-3 ruling by the U.S. Supreme Court in 1996.
Roberts’ role in the case, disclosed this week by the Los Angeles Times, included helping develop a strategy and firing tough questions at Jean Dubofsky, a former Colorado Supreme Court justice who argued the case, during a mock court session, Smith said.
Dubofsky, who did not return calls Friday, said Roberts helped develop the strategy that the law violated the equal protection clause in the Constitution — and prepared her for tough questions from conservative members of the court. She recalled how Justice Antonin Scalia asked for specific legal citations.
“I had it right there at my fingertips,” she told the Times. “Roberts was just terrifically helpful in meeting with me and spending some time on the issue. He seemed to be very fair-minded and very astute.”
Dubofsky had never argued before the Supreme Court. Smith said she called his firm and asked specifically for help from Roberts, who argued 39 cases before the court before he was confirmed as a judge on the U.S. Court of Appeals in Washington, D.C., in 2003.
Smith said any lawyer at Hogan & Hartson would have had the right to decline to work on any case for moral, religious or other reasons.
“If John had felt that way about this case, given that he is a brilliant lawyer, he would have just said ‘This isn’t my cup of tea’ and I would have said ‘Fine, we’ll look for something else that would suit you,”’ Smith said.
Another piece of the 'puzzle'
The Lambda Legal Defense Fund, which helped move the case through the state and federal courts, said Roberts’ involvement raised more questions about him than it answered because of his “much more extensive advocacy of positions that we oppose,” executive director Kevin Cathcart said.
“This is one more piece that will be added to the puzzle in the vetting of John Roberts’ nomination,” Cathcart said.
Tom Goldstein, an attorney who teaches Supreme Court litigation at the Stanford and Harvard law schools, said if anything, Roberts’ involvement in the case could win over skeptical Democrats.
“It tells you he is not so committed ideologically to conservatism that he would find it impossible to help one side in a case,” he said. “I think this tells you that John Roberts at least isn’t so aghast at the notion of gay rights that he finds it outside the pale. Beyond that it doesn’t tell you much.”
The right stands by its man
The Rev. Lou Sheldon, founder of the Traditional Values Coalition, said his support for Roberts’ nomination has not diminished. He said he thought liberal groups were trying to undermine conservative support for the nomination.
“It does not make me nervous,” Sheldon said. “He wasn’t the lead lawyer. They only asked him to play a part where he would be Scalia in a mock trial. So we don’t have any hesitations.”
Focus on the Family Action, the political arm of the Colorado Springs-based conservative Christian ministry Focus on the Family, said Roberts’ involvement was “certainly not welcome news to those of us who advocate for traditional values,” but did not prompt new concerns about his nomination, which the group supports.
“That’s what lawyers do — represent their firm’s clients, whether they agree with what those clients stand for or not,” the group said in a statement. “Nothing we’ve read today alters our belief that Judge Roberts deserves a fair hearing before the Senate Judiciary Committee and a timely up-or-down confirmation vote in the full Senate.”
Roberts did not mention his work on the case in his 82-page response to a Judiciary Committee questionnaire, which included such details as his membership in a neighborhood swimming pool. The committee has scheduled Roberts’ confirmation hearing for Sept. 6.