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In Re: John Roberts, Part IWhiskey & Gunpowder John Roberts graduated summa cum laude from Harvard College in 1976. He was accepted into and attended Harvard Law School, graduating magna cum laude in 1979, after editing the Harvard Law Review . He clerked for the distinguished jurist Judge Henry Friendly, of the Second Circuit Court of Appeals, and then clerked for Supreme Court Justice William Rehnquist. This alone would distinguish him from almost every other lawyer in the country. Roberts followed his two outstanding judicial clerkships by working in the U.S. Department of Justice under the administration of Ronald Reagan. He served as deputy solicitor general under the first President Bush, in which role he argued numerous cases before the U.S. Supreme Court on behalf of the U.S. government. Again, this places John Roberts among the most elite within the community of lawyers. Roberts left the employ of the U.S. government in 1992 and went to work for the very fine law firm of Hogan & Hartson, enjoying a premier form of law practice in Washington, D.C. There, John Roberts practiced, not surprisingly, in the arena of appellate law. This included him arguing many more cases, on behalf of private clients, before the U.S. Supreme Court. This career path of John Roberts is truly a law practice at the most elite of levels. In 2003, at the age of 48, John Roberts was nominated by President George W. Bush and confirmed by the U.S. Senate to become Judge Roberts of the U.S. Circuit Court of Appeals for the District of Columbia. Sitting in the nation's capital city, he moved into a job where his every decision was subject to the highest media visibility and utmost political scrutiny. Really, there are only nine other people in this country with more judicial power than John Roberts. Those nine people work in a monumental white marble building across the street from the U.S. Capitol Building. Obviously, John Roberts has done very well during his career, and he is only 50 years old, with many good years ahead of him. In an array of jobs and tasks spanning three decades, he has performed all of them brilliantly, and, by all accounts, with complete distinction. The Philadelphia Inquirer recently quoted a source as saying that there is a consensus among the nine justices on the current Supreme Court that the best attorney who regularly practiced before them over the past decade was John G. Roberts. And in the very near future, that same John G. Roberts may find himself sitting on the high side of that powerful bench. So we are entitled, I believe, to go beyond the impressive resume and ask, "Who is this man?" Judge Roberts' old boss during his Supreme Court clerkship and current boss as a sitting federal appellate judge is William Rehnquist, chief justice of the United States. Chief Justice Rehnquist once discussed what it meant to him to be a lawyer during a speech he gave to a group of attorneys in Pittsburgh. During his talk, the chief justice referred, somewhat wistfully, to his long-ago days of practicing law in Arizona. He said, "I used to know that I was practicing law for a living when I would show up at the office in the morning and the first thing I would do was look through the mail. I wanted to see if anyone had sent me a check." Everyone in attendance chuckled, and every lawyer in the room understood. You could almost feel the collective sense among the practitioners that the nation's chief justice was a man after their own collective heart. The chief justice's comment, while pithy and amusing, also reveals another side of law practice, however implicitly. Within the hierarchy of attorneys, there are those who are not what many day-to-day practitioners would call a "shoe leather" lawyer. These particular lawyers practice at the distant end of a broad legal spectrum, a place to which many aspire but to where relatively few can ever make the journey. These particular lawyers do not chase any of those proverbial ambulances, or visit injured clients in a hospital room to obtain a signature on a power of attorney. They do not routinely spend hours at a desk reviewing legal documents such as wills or tax forms, or bond issues or Uniform Commercial Code filing statements, like many practitioners. These particular lawyers spend few, if any, afternoons downtown in Motions Court, listening to the grinding give-and-take of lawyers and trial judges hashing out the elements of mundane domestic law, bankruptcy, street-level civil litigation, or criminal matters. And they never have to try to get a statement of what happened out of some cop with an attitude. Not to put too fine a point on it, but these lawyers start their careers on the right foot by clerking for high-end judges. And do not get me wrong: Those are good jobs and someone has to do them. These lawyers then go on to build career points by working at senior levels for presidential administrations. They are privileged to be assigned the job of preparing and arguing cases at the senior appellate level, including the U.S. Supreme Court. Again, do not get me wrong: Those are good jobs and, again, someone has to do them. Later in their careers, these lawyers leave government service and go on to earn substantial salaries working for prestigious law firms. And sometimes they get appointed to important judgeships. As I said before, and not to be repetitive, but I want to be sure that you do not get me wrong: Those are really good jobs, and someone really good has to do them. In this case, that particular kind of lawyer is John Roberts. He has held some of the very best jobs in the field of American law. Apparently, Judge Roberts did them quite well. It is also hard to overlook the fact that John Roberts has spent quite a bit of time working inside the Washington Beltway. But then again, Beltway Fever infects different people in different ways. There are people who know John Roberts very well both at the professional and personal levels. A respectable number of them have said that by background and skills, by resume and temperament, John Roberts might be the best-qualified individual in the nation to serve as a justice of the Supreme Court. There are, of course, those who differ with this assessment. Anita Hill is one of these critics. Hers is a name from the past, and she is evidently now attempting to regain the fame she enjoyed in her youth during the Clarence Thomas hearings. Ms. Hill has pointed out that John Roberts is a Caucasian male. In some circles, that is a seriously negative allegation. But perhaps we can forgive Judge Roberts for circumstances beyond his control. Also, within the past week or so, there have been numerous articles in both The New York Times and the Los Angeles Times about Judge Roberts. These articles tend to get picked up and distributed by the many other news outlets that take their leads from these two well-established news sources. The articles point out that John Roberts and his wife are both "devout Catholics." Yes, of course. "Devout." And we all know what that means, don't we? But perhaps we can forgive Judge Roberts and his wife for holding to their religious faith. Other critics of John Roberts, such as Massachusetts' own senator-for-life Ted Kennedy (D-Mass. -- who did not graduate from Harvard), have latched onto a wry comment in a short dissenting judicial opinion authored by Judge Roberts (who did graduate from Harvard -- twice) on a ruling protecting a rare California toad. Judge Roberts noted, in his offensive opinion, that a particular toad, "for reasons of its own, lives its entire life in California." From this comment, the critics have discerned and inferred that a potential Justice Roberts of the U.S. Supreme Court might take the opportunity to gut the current judicial interpretations of the "interstate commerce" clause of the U.S. Constitution. That is, they fear that a Justice Roberts might take the nation's jurisprudence back to a time in the early 1790s, when the "interstate commerce" clause referred specifically and uniquely to coastal trade between seaports in different states, hauled by merchant sailing ships. Or something like that. Unfortunately for us all, and sadly for the long-term political health of the nation, in today's politicized environment of Washington, D.C., Senate hearings for "advice and consent" have deteriorated to the point of silliness. The nomination and confirmation process for key jobs within the government of the United States has devolved into a sort of highly-scripted Kabuki theater. Under the current process, the nominee is dressed up and "handled" by the appointing power. The nominee is then paraded before the press, to whom he says as little as possible. Eventually the nominee is propped up before the inquisition of posturing senators. Under the glare of klieg lights, the posturing senators pretend to ask intelligent questions. I recall Sen. Kennedy quizzing then-judge of the Ninth Circuit, Anthony Kennedy, during a Supreme Court confirmation hearing back in the 1980s: "Judge Kennedy, why did you rule the way you ruled in the Case of Smith?" or something along those lines. Yes, the senators pretend to ask intelligent questions. And the nominee pretends to answer them: "Sen. Kennedy, I recall the decision. I ruled the way I ruled in the Case of Smith because of the previous circuit court holding in the matter of Jones. My hands were tied by the prior judicial construction of the statute at Public Law XYZ. If you would only amend the governing law to modify Clause 9 of Subsection F to utilize the term 'may' instead of 'shall,' we would not have this problem again." Or something along those lines. Now there is an answer for you. The cameras roll, recording it all for C-SPAN, if not for posterity, and the newshounds lap it all up. The long and short of it is that nominees to the U.S. Supreme Court have learned not to answer any sort of questions from inquiring senatorial minds about anything of particularly deep legal substance. By the 1990s, the standard answer of a Supreme Court nominee had evolved along the lines of what Ruth Bader Ginsburg provided to questioners during her Supreme Court confirmation hearing in 1994: "I cannot comment upon that question, Senator, because it is a matter that may come before the Court. I do not want to prejudge the issue." No, Justice Ginsburg, of course you would never want to prejudge any issue. We would expect no less a standard of review from the former counsel to the American Civil Liberties Union. The American people, who pay the taxes and who will have to live with the decisions of whoever sits on the Supreme Court, know less and less about the men or women whose decisions will affect them more and more. And so we return to the earlier question I posed, "Who is John Roberts?" To be continued in Part II. Until we meet again... Byron W. 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