Roberts could tilt to right of court

Nominee and Rehnquist have much in common

July 24, 2005|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

On issues ranging from presidential powers to law and order, legal analysts say the written record of Supreme Court nominee John G. Roberts Jr. suggests he would align most often with the current court's staunchest conservatives, and perhaps most closely with the man he once worked for, Chief Justice William H. Rehnquist.

In style and in substance, there is much common ground between Rehnquist, 80, and his clerk from 25 years ago, Roberts, now 50. Both men cut their teeth as young lawyers in Republican administrations, have shown a deep reverence for the court as an institution and share a low-key, self-effacing style.

Unlike Rehnquist, who was appointed by President Richard M. Nixon to a decidedly more liberal court in 1972, Roberts could bring to the court a fifth, and deciding, conservative vote on a number of issues. Legal scholars who have looked closely at Roberts' work as an attorney and as a federal appellate judge say he is unlikely to replicate the swing-vote model of the justice he would replace, Sandra Day O'Connor.

"I'm not so sure why there's such speculation about Roberts being a moderate or a swing vote," said Jonathan Turley, a George Washington University law professor who has written extensively about the court. "There's nothing in his background that suggests Roberts will be anything other than a consistent and firm vote with the conservative members of the court."

Roberts' judicial record is limited. In two years on the U.S. Court of Appeals for the District of Columbia Circuit, he has helped decide about 120 cases and written 49 published opinions. None of the cases has involved the most divisive issues, such as abortion or affirmative action, at the center of questions surrounding his confirmation to the Supreme Court.

But the record shows Roberts as a judge who would resist limits on presidential authority while restricting the federal government's power over states, who would draw a hard line on questions of crime and punishment and who would follow closely the plain text of federal statutes.

In that way, he would find common allies in Rehnquist and in the court's two most reliable conservatives, Justices Antonin Scalia and Clarence Thomas - the two judges whom President Bush praised on the campaign trail and said he would try to replicate in filling any vacancies on the Supreme Court.

"He is likely to be very much like Scalia and Thomas in his voting," Turley said. "There aren't many gray areas in John Roberts' view of the law. I think he's going to turn the court sharply to the right."

Appeals court cases

Several cases Roberts helped to decide on the D.C. appeals court have drawn attention. In one, Roberts wrote the majority decision when a three-judge panel upheld the arrest and handcuffing of a 12-year-old girl for eating a french fry on one of the Metro system subway cars. The girl's family sued.

"No one is very happy about the events that led to this litigation," Roberts wrote. But, the decision continued, "the law of this land does not recognize a fundamental right to freedom of movement when there is probable cause for arrest."

In another case, Roberts joined the decision upholding the president's authority to use military tribunals to try terrorism suspects at the U.S. detention facility in Guantanamo Bay, Cuba. When the Supreme Court ruled a year ago that detainees have a right to challenge their detention, Scalia in a dissent called the check on executive power "a monstrous scheme in time of war" and "judicial adventurism of the worst sort."

Stylistically, Roberts is unlikely to have such sharp elbows, said Arthur Hellman, a University of Pittsburgh law professor who closely follows the Supreme Court.

"In Scalia, some of what you see is the academic" background that he brought to the court, Hellman said. "The kind of sparring that we see in his opinions ... that's a very academic way of looking at the law, and that's just not Roberts' background at all. He's a lawyer, and he'll approach these cases as a lawyer turned judge."

In background and temperament, Hellman said, Roberts' closest ally on the court is likely to be his one-time mentor, Rehnquist. Rehnquist went to Washington after growing up in Milwaukee and worked as a high-level lawyer in the Justice Department under Nixon before he was nominated - as a relative unknown - for the court. Roberts, who grew up in Long Beach, Ind., worked for the White House counsel under President Ronald Reagan and later in the Justice Department under the first President George Bush before working for a decade as a highly successful federal appellate lawyer at the Washington law firm Hogan & Hartson LLP.

Former mentor

If Rehnquist and Roberts serve together on the court, it would be the first time a former clerk has joined the justice he clerked for on the Supreme Court bench. It could be a bittersweet pairing - Rehnquist is ill with thyroid cancer, and many court analysts expect that the term that opens in October will be his last on the court.

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