TOO GOOD A LAWYER:

Court Nominee Advised Group on Gay Rights (SHERYL GAY STOLBERG and DAVID D. KIRKPATRICK, 8/05/05, NY Times)

Judge John G. Roberts Jr., the Supreme Court nominee, gave advice to advocates for gay rights a decade ago, helping them win a landmark 1996 ruling protecting gay men and lesbians from state-sanctioned discrimination.

Judge Roberts, at the time an appellate lawyer for the Washington firm of Hogan & Hartson, did not write legal briefs or argue the case, lawyers involved said. But they said he did provide invaluable strategic guidance working pro bono to formulate legal theories and coach them in moot court sessions. [...]

The lead plaintiffs' lawyer in the Romer case, Jean Dubofsky, said Thursday that she sought out Judge Roberts at the recommendation of Walter Dellinger, then a senior official in the Justice Department under President Bill Clinton. Ms. Dubofsky, a former justice of the Colorado Supreme Court, said she was specifically seeking a conservative who could provide her an insider's road map, of sorts, helping her to anticipate objections from some of the court's more conservative members, like Justice Antonin Scalia and Chief Justice William H. Rehnquist.

Judge Roberts, who once clerked for Justice Rehnquist and now serves on the United States Court of Appeals for the District of Columbia Circuit, spent about six hours on the case, Ms. Dubofsky said. "He told me, 'You have to know how to count and to get five votes, you're going to have to pick up the middle.' "

And then, she said, Judge Roberts provided explicit instructions on how to do just that, telling her that she would have to prove to the court it did not have to overturn a previous case, Bowers v. Hardwick, which upheld a ban on homosexual sodomy. He peppered her with questions in a moot court session.

"So when I was asked by Justice Scalia if they would have to overturn Bowers v. Hardwick to rule my way, I said no," Ms. Dubofsky said, adding, "In this particular case if you wanted to get the U.S. Supreme Court turned around on gay rights issues, you didn't have to win every gay rights case floating around out there."

Ultimately, in a forceful opinion by Justice Anthony M. Kennedy, the court said the Colorado provision had put the state's gay men and lesbians in a "solitary class," singling them out in violation of the Constitution's equal protection guarantee in a manner that was so sweeping as to be inexplicable on any basis other than animus. Chief Justice Rehnquist and Justices Scalia and Clarence Thomas, the justices to whom Judge Roberts is most often compared, issued a blistering dissent.

It'd be interesting to hear Mr. Roberts explain how he thinks Bowers can be reconciled with Romer--the Court couldn't.

Posted by Orrin Judd at August 5, 2005 10:26 AM