Tuesday, July 19, 2005

Highlights from the 2003 confirmation hearing of Roberts - Part I

From Senator Kennedy's opening remarks,
"I am concerned about Mr. Roberts' efforts to limit reproductive rights as a Government lawyer, his advocacy against affirmative action, and Federal Environmental Protection Laws in his efforts to shield states from individual suits, and to limit Congress's ability to pass legislation regulating state conduct in the name of the states' rights."
Senator Hatch opens the afternoon session of the hearing himself and goes right too Roberts and makes a few points that we will hear repeated quite frequently in the next few days about the positions attorneys take on behalf of clients. This is basically going to be the defense for Roberts position on Roe while he was working for the Solicitor General's office ,
"It seems to me that both Mr. Roberts and Mr. Sutton are being criticized for positions they have taken as attorneys representing clients. Now, this is patently unfair, and it is inappropriate because attorneys do represent clients, and they should not be judged by who our clients are. Any of us who have tried cases know that sometimes our clients may not be savory, but the case may be a good case, who knows?

Now, attorneys are required to represent their clients, and this is the case whether their client is the U.S. Government, a State Government, a private citizen or a corporation, and this fact is so fundamental that it should go beyond reproach. In any legal matter, the arguments a lawyer makes in the role of a zealous advocate on behalf of a client are no measure of how that lawyer would rule if he were handling the same matter as a neutral and detached judge, and I think it is very unfair to imply that the judgeship nominee would not follow the law.

Now, this is because lawyers have an ethical obligation to make all reasonable arguments that will advance their clients interests. According to Rule 3.1 of the ABA's model rules of professional conduct, a lawyer may make any argument if, ``there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law.''

Now, lawyers would violate their ethical duties to their client if they made only arguments with which they would agree were they the judge or a judge.

Now, Mr. Roberts, although my Democratic colleagues are, and some in the Senate and elsewhere, have tried to paint you as an extremist, the truth is, is that you are a well-respected appellate lawyer, who has represented an extremely diverse group of clients before the courts. In fact, you have often represented clients and what is considered to be the so-called ``liberal'' position on issues. I would just like to ask you about a few of these cases."

Hatch goes on to highlight some of Roberts more liberal moments as an attorney, he mentions a few cases including his participation on behalf of the Clinton Justice Department's anti-trust case against Microsoft.

Senator Kohl asked about anti-trust,
"Last question. One of my priorities on this Committee is my role on the Antitrust Subcommittee. Strong antitrust enforcement is essential to ensuring that competitive flourishes throughout our country which benefits consumers through lower prices and better-quality products and services. Federal courts are essential to the firm enforcement of our antitrust laws and to ensuring that anti-competitive conduct is sanctioned.

Many antitrust questions are decided under what is known as the rule of reason in which the harm caused by the business conduct at issue is balanced against full competitive justifications. This document gives a great deal of discretion to the courts to determine whether or not the antitrust laws have been violated.

What would be your approach to deciding antitrust issues under the rule of reason? More generally, please give us your views regarding the role of the judiciary with respect to the enforcement of antitrust law."

and here is Roberts response (Kohl did not follow up),
"As a private lawyer, I have actually represented probably more plaintiffs and enforcement interests in antitrust actions than defendants. I represented the State Attorneys General in the Microsoft case and represented several private plaintiffs in antitrust appeals as well, handled some antitrust cases when I was in the Solicitor General's office.
I've also represented corporations accused of antitrust violations, and I think that balanced perspective is something that's valuable for a judge. I certainly think a lawyer coming into court, if I were to be confirmed, representing a plaintiff in an antitrust action should take some comfort in the fact that I've done that. And a lawyer representing a defendant should take some comfort in the fact that I have done that as well and I have the perspective of the issue from both sides.

So, again, obviously as judge, I'd follow the binding Supreme Court precedent and the precedent in my circuit. But I would hope that in doing so, I would have some added perspective from having been on both sides, both the plaintiff side and the defendant side, in antitrust enforcement actions."

The last portion about following Supreme Court precedent sounds nice but really means nothing now, as member of the Supreme Court he would no longer be required to follow Supreme Court precedent. Nonetheless I'm sure we'll see that quote and similiar quotes trotted out by the Republican's as some sort of demonstration to the left that Roberts as a moderate.

This comes from an exchange with Senator Sessions concerning criticism of nominees for the Judicial branch over their personal political beliefs. Sessions suggested that such attacks were unwarranted because ultimately the nominees are qualified and will uphold the rule of law. Roberts answer,
"if it all came down to just politics in the judicial branch, that would be very frustrating for lawyers who worked very hard to try to advocate their position and present the precedents and present the arguments. They expect the judges to work justified. And if the judge is going to rule one way or the other, regardless of the arguments, well, he could save everybody a lot of work, but the rule of law would suffer... And I know as an advocate, I never liked it when I had a political judge, when I was in front of a political judge, because, again, you put a lot of work into presenting the case, and you want to see that same work returned. And the theory is that that will help everybody reach the right result, and I think that's correct."



To be continued....

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