The Alliance for Justice, a liberal group that tracks judicial nominees, declared that Judge Roberts had “a record of hostility to the rights of women and minorities. He has also taken controversial positions in favor of weakening the separation of church and state and limiting the role of federal courts in protecting the environment.”

The group pointed out that Judge Roberts also argued on the government’s behalf that court supervision should be lifted in school desegregation cases; that public high schools should be able to perform religious ceremonies at graduations (a position rejected by the Supreme Court), and that religious groups had a right to meet on school grounds (a position the court accepted.)

His defenders argue that no individual brief should be held against him because a lawyer is duty-bound to represent his clients and make all reasonable legal arguments in the client’s favor. “There is extraordinary cover there,” said Mr. Goldstein. “It was his job to sign the brief.”

Senator Hatch,a Republican of Utah who chaired the confirmation hearing, said it was “patently unfair” to attribute the arguments personally to Judge Roberts. “Attorneys are required to represent their clients,” he said. “This fact is so fundamental that it should go beyond reproach.”

Mr. Hatch noted that the nominee’s clients also included welfare recipients that he represented for free, a prison inmate who alleged cruel and unusual punishment, Hawaii’s Democratic attorney general and governor arguing in favor of a race-conscious program to benefit native Hawaiians, and a Nevada regulatory agency seeking to limit property development around Lake Tahoe.

Native Peoples

In a case concerning the Fifteenth Amendment, Roberts unsuccessfully argued that Hawaii could limit voters to only "Native Hawaiians" in the election of nine trustees that administer programs specifically for "Native Hawaiians."16 Robert’s argument was twofold.

First, the provision was no different than any other attempts by Congress and the states to honor the special obligation to America’s other native peoples.17 Second, the provision "does not violate the Fifteenth Amendment--and is not subject to strict scrutiny under the Fourteenth [Amendment]--because it does not draw any distinction ‘on account of race.’"18 The Court found otherwise and held that limiting the vote to only "Native Hawaiians" violated the Fifteenth Amendment.19

In a case that dealt with whether land was "Indian Land," Roberts correctly interpreted a Federal Statute and argued it was not.20 The statute at issue, the Alaska Native Claims Settlement Act (ANCSA), was enacted to free up lands formerly designated by Congress as reservations from the heavy regulations such designations entail.21 ANSCA permitted business corporations made up of Alaskan Natives to take the lands in fee simple and to use the lands for any purpose.22 The specific issue in the case was whether once the land had been transferred could the corporate owner impose a tax upon non-Alaskan Natives conducting business on the land. Such taxes are permitted when the land in question is considered "Indian Land."23 Roberts argued, and the Court concurred, that since ANSCA transfers the land without any restraints on alienation or significant use restrictions, the transferred land can no longer be deemed "Indian Land" and therefore taxes may not be imposed.24
...
17 Respondent’s Brief at 3, Rice v. Cayetano, 120 S. Ct. 1044 (2000)
18 Id.
19 Cayetano, at 1054-60
20 Alaska v. Native Village of Venetie Tribal Gov’t et al., 118 S. Ct. 948 (1999)
21 Id. at 950-52
22 Id.
23 Id. at 951
24 Id. at 955-56

Indianz.Com. In Print.
URL: http://www.indianz.com/News/2005/009376.asp
Bush names John G. Roberts to U.S. Supreme Court
Wednesday, July 20, 2005
A conservative appellate court judge with significant experience in Indian law was nominated as the 109th U.S. Supreme Court justice on Wednesday.
....
The Rice case was brought up during Roberts' January 29, 2003, confirmation hearing for the D.C. Circuit Court of Appeals. It was cited as proof that Roberts, as an experienced lawyer, represented a wide range of clients on diverse subjected and that he wouldn't base his judicial decisions on any personal views he might hold.

"I found that particularly gratifying because it indicated that they thought my abilities were such that I would be able to represent them effectively, and certainly wouldn’t be dissuaded in any way by any political considerations," he told the Senate Judiciary Committee.

Roberts was later confirmed to the D.C. Circuit on May 8, 2003, an important court in terms of Indian law. It hears the Cobell v. Norton trust fund case and dozens of other tribal rights cases that deal with actions by federal agencies.

But Roberts hasn't written any opinions in many of those cases, much less sat on a panel that decided them. The only exception is Roseville v. Norton in which the court upheld the Interior Department's acquisition of non-reservation land for a California tribe that opened a casino. Roberts didn't write the ruling.

Despite his legal achievements, the lack of a voluminous record on extends further back in Roberts' career. In addition to being a lawyer in private practice, he served as the principal deputy solicitor general from 1989 to 1993 in the first Bush administration, a key position in an office that helps decide which cases go to the Supreme Court.

During this time, important cases like Duro v. Reina, No. 88-6546, which held that tribes lack inherent criminal jurisdiction over Indians of other tribes, went before the court but Roberts' name doesn't appear on the Department of Justice's briefs, according to a preliminary search of documents from that period.

The attorney who represented the villages, Heather Kendall-Miller of the Native American Rights Fund, Tuesday recalled Roberts as "always extremely professional and courteous." She said Roberts also worked for the state of Alaska during parts of the Katie John subsistence litigation.

Kendall-Miller was asked if she has any thoughts about Roberts' judicial leanings. "Absolutely none," she said.

"That's the challenge here with someone who's spent (most of) his career in private practice, where you work for whoever might be able to pay you. ... He hasn't been on the bench long enough for people to get a good sense of that" from his opinions.

In a 1997 interview with the Daily News leading up the to the Venetie arguments, Roberts said that he took the case because he believed the Supreme Court would agree to hear the state's appeal, and that he believed in the state's position against Indian country in Alaska.

"It's a very important case," he said, "an interesting issue."

Legal Times

June 4, 2001

SECTION: COURT WATCH; Pg. 01

LENGTH: 1565 words

HEADLINE: Left Builds Case Against Bush Judges
Attack on D.C. Circuit Nominee Distorts Record, Supporters Say

BYLINE: By Jonathan Groner

BODY:
Barely two weeks ago, John Roberts Jr. seemed a shoo-in for speedy confirmation as the newest judge of the U.S. Court of Appeals for the D.C. Circuit. A Senate Judiciary hearing was set for May 23, and all indications were that it would be a cursory affair.

But May 23 turned out to be the day that Sen. James Jeffords of Vermont made it clear that he would leave the Republican Party, shifting control of the Senate to the Democrats. Judiciary Chairman Orrin Hatch (R-Utah) cancelled Roberts' hearing, along with those of two other judicial nominees.

And with the cancellations apparently went all prospects for a rapid and painless ascension to the bench for several Bush nominees, including Roberts, 46, the highly regarded head of Hogan & Hartson's appellate practice.

That's because Jeffords' bombshell is giving liberal interest groups-including the National Abortion and Reproductive Rights Action League (NARAL), People for the American Way, and the Alliance for Justice-something they previously lacked: time. Time to do research, time to network, and time to try to influence new Judiciary Committee Chairman Patrick Leahy (D-Vt.) and his Democratic Senate colleagues.

Although no one is suggesting now that Roberts will be defeated, NARAL, considered one of the more influential of the liberal activist groups, announced its formal opposition to him on May 21.

"There is no question that John Roberts' views represent a serious threat to the constitutional rights of women and the rights of reproductive choice," says Kate Michelman, NARAL's president. "He has argued consistently [in court cases], whenever possible, that there is no right of choice."

Michelman predicts that "a number of other members of the advocacy community" will soon join NARAL's opposition to Roberts. She declines to specify which ones. Although leaders of People for the American Way and the Alliance for Justice are more circumspect than Michelman, it appears likely that Roberts will face more heat.

Undeservedly so, say Roberts' supporters, who note that Roberts has advocated for so-called liberal positions in some cases and has the admiration of many legal scholars and practitioners who don't share his conservative views.

"John Roberts is possibly the foremost appellate lawyer of his generation," concludes Lawrence Robbins, a former lawyer in the solicitor general's office and now a partner in D.C.'s Robbins, Russell, Englert, Orseck & Untereiner. "The idea of arguing what he would do as a judge, based on positions he has advanced in court, is reckless. These groups are not being candid. They are just playing politics. They should be honest and just say they will oppose any nominee by this president."

The promise of a flap over the nomination of Roberts-who served for four years as deputy solicitor general in the first Bush administration and who has argued 33 cases before the Supreme Court-represents the first hint of the political climate that will likely affect other circuit court nominees, including Jeffrey Sutton, Michael McConnell, and Miguel Estrada.

Marcia Greenberger, co-president of the National Women's Law Center, which has not yet taken a position on any judicial nominees, says that the NWLC rarely plunges into debates over lower court judges. But now, she says, "we are evaluating the role we'll play and the posture we'll take, in view of the types of nominees that this administration is seeking and the importance of preserving American women's rights."

Marcia Kuntz, director of the judicial selection project of the Alliance for Justice, says that although it's too early in the process for the alliance to make a call on Roberts, "all of these [nominees] need to be looked at."

"There is no time frame now. No hearings are scheduled. The Democrats are now in control of the agenda," Kuntz says.

"The administration wants to show that these nominees are mainstream conservatives," Kuntz adds, "but we have major concerns that Roberts may not be in the mainstream on issues like choice and the environment."

On the abortion issue, Michelman notes that as deputy solicitor general, Roberts wrote in a 1991 brief that the Supreme Court's conclusion in Roe v. Wade that there is a fundamental right to abortion "finds no support in the text, structure, or history of the Constitution."

The case was Rust v. Sullivan, which raised the issue whether the Department of Health and Human Services could constitutionally limit its grantees' ability to engage in abortion counseling. The case was argued by then-Solicitor General Kenneth Starr. The Court upheld the HHS restrictions in a 5-4 decision.

Michelman also says that in Bray v. Alexandria Women's Health Clinic, a 1993 case involving access to abortion clinics, Roberts, still in the SG's office, said anti-abortion protesters' behavior did not amount to discrimination against women. Abortion-rights groups argued that since only women have abortions, the protests had a sex-based animus. The Court agreed with Roberts, who argued the case, in another 5-4 vote.

Liberal activists can also identify cases in which Roberts advocated positions antithetical to the goals of labor, environmental groups, and supporters of affirmative action.

Some point to Toyota Motor Mfg. v. Williams, an Americans With Disabilities Act case in which the U.S. Court of Appeals for the 6th Circuit held in a divided ruling that a Toyota plant worker with carpal tunnel syndrome qualifies for the act's protections. The Supreme Court granted Roberts' petition for certiorari on Toyota's behalf in April.

Roberts declines comment on his nomination. Calls to the White House counsel's office regarding the nomination were not returned.

But Roberts' supporters say it is wrong-headed to infer a lawyer's political views from his statements in briefs or arguments on behalf of clients-especially in the case of a nominee like Roberts, who has never stepped out from his role as counsel to express personal opinions.

"They apparently are going to attribute to John everything said in every brief filed by the Department of Justice that he signed," says Robbins. "No lawyer would wish to be held to every position which, as an advocate, he was required to advance. That denies the role of the lawyer in the adversary process."

Says Barbara Van Gelder, a former assistant U.S. attorney and now a partner in Wiley, Rein & Fielding: "The guy doesn't get to pick his positions as a government lawyer. When he was in the SG's office, he was a fair advocate, and his positions were always in the best light of the government."

Robbins points out that Roberts has argued quite often for positions associated with the liberal end of the spectrum.

For example, in Rice v. Cayetano, a 2000 Supreme Court case, Roberts argued-against conservative icon and now Solicitor General Theodore Olson-that Hawaii did not impose an improper racial preference when it limited voting in certain state elections to indigenous Hawaiians. The Supreme Court rejected Roberts' position in a 7-2 ruling.

Roberts also represented several states this year in the D.C. Circuit appeal of Judge Thomas Penfield Jackson's controversial order to break up the Microsoft Corp., a cause far more popular with liberals than with the corporate community.

Richard Lazarus, the director of the Supreme Court Institute at Georgetown University Law Center, supports Roberts' nomination and says Roberts "is not an ideological person at all."

Says Lazarus, whose personal views tend to the liberal side of the spectrum: "In the eight years since he left the solicitor general's office, I don't think Roberts has filed a single amicus brief for a conservative ideological organization. And I will guarantee that given his prominence, he's being asked all the time to do so. He just hasn't played at all in that game."

Liberal activists respond that in some circumstances, it's perfectly appropriate to press a judicial nominee about positions that he or she has taken as an advocate.

Michelman says, "Roberts was there in the first Bush administration in part because his views were in sync with that administration's hostility to reproductive rights for women. He did a job that he felt comfortable doing."

Elliot Mincberg, legal director of People for the American Way, agrees. Speaking generally about judicial nominees, he says, "I don't think the fact that someone is an advocate insulates him from some responsibility for the content of what's being advocated."

People for the American Way has not yet taken a position on Roberts.

Ultimately Roberts, who has argued many cases before the U.S. Supreme Court, lost that case to Freddie Rice, a Big Island rancher who took his fight against exclusive voting rights for Hawaiians to the nation’s top court.

Rice told Hawaii Reporter he believes Roberts is a good choice for the nation’s highest court.

Who is he?
The former attorney represented the state in Rice v. Cayetano
...
When the Supreme Court struck down the voting restriction as unlawful racial discrimination in February 2000, Roberts told the Star-Bulletin that the decision "could have been worse. The good news is that the majority's opinion was very narrowly written and expressly did not call into question the Office of Hawaiian Affairs, the public trust for the benefit of Hawaiians and native Hawaiians, but only the particular voting mechanism by which trustees are selected."

Honolulu attorney Sherry Broder said yesterday that "he's someone who has represented native Hawaiian people and the state of Hawaii. I'm glad to see he has that kind of a background.

"He is obviously very bright," said Broder, who represented OHA in the Rice case that went before the high court on Oct. 6, 1999. She was one of the local attorneys who briefed Roberts in the case.

"We generally went over the different points to be made. It was very exciting to watch" the case presented to the Supreme Court, she said. "He was very quick on his feet."

Former Gov. Ben Cayetano noted: "He did about as good a job as could be done under the circumstances. I was not optimistic about the state's chance in Rice."

State Sen. Clayton Hee (D Kahuku-Kaneohe), who was OHA board chairman in 1999, said: "I met him and was there during the Supreme Court argument. It says something about him that he has some knowledge about indigenous people.

"Of course, coming up on the short end, I thought he could have made more compelling arguments. I presume he tried his best, but it wasn't to be."

Wednesday, July 20, 2005
Nominee argued state's OHA case at Supreme Court in 1999

By Ken Kobayashi
Advertiser Courts Writer

In the early morning of Feb. 23, 2000, state deputy attorney general Girard Lau groggily answered a call to his Honolulu home from John Roberts Jr., then a Washington lawyer hired by the state to argue a landmark case for Native Hawaiians before the U.S. Supreme Court.

Roberts called to say the high court had ruled in Rice v. Cayetano. The state lost, he told Lau, but he was pleased the justices rendered a narrow ruling limited only to voting rights.

"He did a great job," Lau recalled yesterday. If it weren't for Roberts' work, the ruling might have been more expansive and could have jeopardized government benefits for Native Hawaiians, Lau said.

As it is, with its narrow focus, the decision left the door open for such measures as the Akaka bill now pending before Congress, he said.

"I think he did a good job of laying out the case so it was much harder for the court to make a sweeping ruling," said Lau.

Roberts was nominated yesterday by President Bush to be a U.S. Supreme Court justice.

Lau, who works in the appeals division of the state attorney general's office, was the point person in contact with Roberts for the Rice vs. Cayetano case. Roberts argued for the state when the U.S. Supreme Court heard the case in October 1999.

Lau said the office wanted to hire someone best qualified, focusing on lawyers who had experience in appearing before the high-court justices.

"He had an extremely good reputation," he said.

Rice vs. Cayetano involved a lawsuit by Big Island rancher Harold "Freddy" Rice, challenging the requirement that only Hawai'i residents with Hawaiian blood could vote for trustees of the Office of Hawaiian Affairs. Chief U.S. Judge David Ezra and the U.S. 9th Circuit Court of Appeals both sided with the state in defending the practice, but the high court agreed to hear the case.

Lau watched Roberts argue before the high court and said he did an "excellent" job, although it was a difficult one given the questions posed by the justices. He and Roberts left thinking that it would be a "tough" one to win.

"You just hope from the way the questioning went that the justices fully appreciate your case," Roberts told reporters.

In the 7-2 decision by the Supreme Court in 2000, the majority justices held that restricting the ballots only to Native Hawaiians violated the Constitution's 15th amendment protecting voting rights.

Roberts told reporters "a silver lining" was that the majority issued such a narrow ruling. "In terms of a defeat, it is at least good news that the court wrote very narrowly and focused on the voting issue," he said.

Although that decision has been invoked by both sides in the current debate over the Akaka bill, Lau said the majority limited the ruling to the Constitution's 15th amendment. If they had based the decision on the Constitution's equal-protection 14th amendment, the ruling might have made it harder to save programs for Native Hawaiians and easier to attack the Akaka bill on constitutional grounds, Lau said.
...
Lau said he recognizes the irony that Roberts, who had a conservative reputation, was hired to represent what some might consider a liberal cause. Lau said he never asked Roberts about his personal views because it would be irrelevant and that a good lawyer would set it aside in presenting the client's case.

As an advocate, Roberts argued positions in support and against affirmative action, and for and against prisoner rights, he said. "Clearly a good attorney can argue both sides of an issue," he said.
...
"Sometimes a conservative advocate for liberal causes is more compelling to the court," he said.