August 5, 2005

Roberts' help on Romer doesnt ease concerns

by Lisa Keen

Washington, D.C.--A newspaper report that U.S. Supreme Court nominee John Roberts Jr. provided significant assistance to the legal team which won a landmark gay civil rights case in 1996 has done little to assuage the concerns of gay activists.

The Los Angeles Times reported August 4 that, while Roberts did not help prepare any legal briefs in Romer v. Evans, he �was instrumental in reviewing filings and preparing oral arguments.�

Romer v. Evans was appealed to the Supreme Court by the state of Colorado, which was seeking to defend a voter-approved initiative called Amendment 2. The measure, which was passed in 1992 and served as a model initiative for anti-gay groups in other states, sought to eliminate any existing or future legal protection for gay people from discrimination based on sexual orientation.

According to the Times report, the head of volunteer work at the law firm where Roberts worked at the time asked Roberts if he would assist the legal team which was challenging the anti-gay initiative. Roberts agreed.

In an interview for this paper, the head of that legal team, Jean Dubofsky, provided additional details on how Roberts came to assist her legal team. She said the wife of then-Solicitor General Walter Dellinger worked at the same law firm as Roberts, Hogan and Hartson, and suggested Dubofsky talk to Roberts.

Walter A. Smith Jr., who headed up Hogan and Hartson�s department for volunteer work, made the introduction.

Dubofsky said Roberts� participation constituted a discussion over lunch about legal issues in the case, primarily equal protection issues. She said he also participated in a moot court session to help prepare Dubofsky for her oral argument before the Supreme Court in October 1995.

Dubofsky noted to the Times that Roberts �gave her advice in two areas that were �absolutely crucial�.�

�He said you have to be able to count and know where your votes are coming from. And the other was that you absolutely have to be on top of why and where and how the state court had ruled in this case,� Dubofsky told the Times.

When the decision came out, in May 1996, the Supreme Court vote was 6 to 3 in favor of striking down Amendment 2, based on the argument that it violated the Constitution�s guarantee of equal protection.

The New York Times reported last week that, following the Los Angeles Times story, White House officials telephoned a number of prominent conservative supporters to reassure them about Roberts� conservative credentials. The New York Times said that �not all of them had been convinced.�

But by Monday, the Washington Post was reporting that most conservative groups were still solidly behind Roberts. The closest any came to expressing concern was Tony Perkins, president of the Family Research Council. Perkins said he trusts President Bush�s choice for the Supreme Court but will verify his �judicial philosophy and the opinions� during the confirmation hearings.

Gary Bauer, head of the right-wing American Values group, said in an email newsletter on Friday that the Los Angeles. Times report was �disturbing� and �gives those concerned about values issues reason to pause.� But he emphasized that Roberts spent �very little time� on the Romer case, that his work at the law firm necessitated he provide some pro bono work, and that it is �easy to understand why his advice would be sought out on an issue as controversial as this one.�

Bauer said he was also heartened to learn that Roberts was most useful �for the other side� as a Justice Antonin Scalia-type jurist in the moot court practice.

The concern of gay civil rights activists over Roberts� conservative roots was not diminished by the news.

Kevin Cathcart, executive director of Lambda Legal Defense and Education, which also played a key role in the Romer litigation, said the latest news about Roberts is just �one more piece that will be added to the puzzle in the vetting of John Roberts� nomination.�

�This information, along with his much more extensive advocacy of positions that we oppose continues to raise significant questions for us,� said Cathcart. �A primary issue for us is to what degree, if any, this work reflects on the judicial philosophy Judge Roberts would bring to the Supreme Court.�

Human Rights Campaign President Joe Solmonese said Roberts� involvement with the pro-gay legal team on Romer is �noteworthy� but not very revealing.

�The stakes are too high for guessing games over Judge Roberts� stance,� said Solmonese.

Dubofsky said Roberts, whom she knew to be conservative, probably agreed to help her legal team because Romer v. Evans was �one of the most interesting cases at the time.�

�No one had a sense of what the court might do or how that might fit with other cases.� Dubofsky characterized Roberts as �a consummate lawyer.�

�He can argue a client�s side and talk about a case and you�ll be not quite sure how he would argue or what he would feel about the issue,� said Dubofsky.

Dubofsky noted that Roberts was only one of about �50 or more� attorneys who she consulted before making her argument before the Supreme Court.

�He was particularly useful in getting the conservative standpoint,� said Dubofsky.

Dubofsky said she thinks Roberts will be �fair and open-minded� as a justice.

�He prides himself on that,� said Dubofsky. While Roberts �played the role� of a Scalia-like jurist during the moot court practice for Dubofsky, she said she thinks he is more like Chief Justice William Rehnquist.

When this reporter noted that Rehnquist has voted against the interest of gays in nearly every case before the high court, Dubofsky adjusted her response: �A younger Rehnquist.�

�A Rehnquist more accustomed to gay issues,� said Dubofsky. �There�s an immense difference in 30 years [in age].� Rehnquist is 81; Roberts is 50.

�Clearly,� she said, �Judge Roberts is not afraid of gays and gay rights issues.�

Chai Feldblum, a gay civil rights activist who clerked for Supreme Court Justice Harry Blackmun, said the news about Roberts� involvement with the Romer case �speaks mostly to the point that Roberts will help a client make the best argument, and not necessarily how Roberts would vote himself.�

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