It was safe to assume the Republican base wouldn’t be thrilled with John Roberts’ work on behalf of gay rights activists in Romer v. Evans. The next step would be to gauge exactly how upset they are.
So far, it seems the right is disappointed, but not to the point that Roberts is in real trouble.
The White House immediately sought to reassure Judge Roberts’s conservative backers, telephoning prominent leaders, including Richard Land of the Southern Baptist Convention, but it appeared that not all of them had been convinced. […]
Even so, reports of his involvement echoed on conservative talk shows Thursday, generating outrage and disbelief. “There’s no question this is going to upset people on the right,” Rush Limbaugh told his radio listeners. “There’s no question the people on the right are going to say: ‘Wait a minute. Wait a minute! The guy is doing pro bono work and helping gay activists?’ ” […]
James C. Dobson, chairman of the evangelical group Focus on the Family, said Judge Roberts’s work in the case was “not welcome news to those of us who advocate for traditional values,” though he said it did not necessarily mean that Judge Roberts shared the plaintiffs’ views.
Colleen Parro, executive director of the Republican National Coalition for Life and one of the few conservatives to raise questions about Judge Roberts, said his work on the case was “cause for more caution and less optimism” about his nomination.
All things being equal, Roberts and the Bush gang should be thrilled with the tepid dissatisfaction. The Romer case, as far as the conservative base is concerned, isn’t too far behind Roe v Wade in the list of cases they find truly disastrous. And yet, Bush’s Supreme Court nominee worked behind the scenes on behalf of gay rights activists and used his legal expertise helped them persuade the Supreme Court to rule in their favor. I half-expected them to have a fit, which hasn’t happened. Yet.
There also remains some question about Roberts’ willingness to participate in this case.
John Yoo, a law professor at the University of California at Berkeley who served as a deputy assistant attorney general in the Bush administration, said the pro bono case was unusual for a conservative Republican lawyer. “Usually, conservative lawyers take on the more conservative causes,” Yoo said.
Maybe so, and yet Roberts didn’t seem to hesitate to help out on this one. Walter Smith, who was in charge of pro bono work at Hogan & Hartson from 1993 to 1997, said he had little trouble recruiting Roberts to lend a hand.
“It looked like a challenging, interesting, provocative, important case,” said Mr. Smith, who is now the executive director of the D. C. Appleseed Center, a nonpartisan public interest legal group. “Everybody knew that, and I think he believed it was worth his time.”
Mr. Smith said part of his job was to match lawyers with cases that would intrigue them, and that his initial instinct was that Judge Roberts would be willing, despite his conservative bent. In the past, Judge Roberts has made it a point to note that lawyers do not always agree with their clients.
“Every good lawyer knows that if there is something in his client’s cause that so personally offends you, morally, religiously, if it so offends you that you think it would undermine your ability to do your duty as a lawyer, then you shouldn’t take it on, and John wouldn’t have,” he said. “So at a minimum he had no concerns that would rise to that level.”
That’s an important point. As far as the Dobson crowd is concerned, Roberts should have had moral and religious misgivings about this case, but he didn’t. In fact, Walter Smith added that Roberts clearly had a choice, but chose to help.
It’s just a hunch, but I think this one might linger for a while. The Bush gang worked the phones yesterday, trying to alleviate concerns raised by the major right-wing players. In the short term, that may have helped keep some of the criticisms muted. But the right expects Roberts to be another Scalia, and his work in the Romer case suggests he may not be cut from the exact same cloth.
Ann Coulter said yesterday that “compared to what we know about John Roberts, Souter was a dream nominee.” If her fellow right-wingers start coming to the same conclusion, next month’s hearings could get lively.