A forgetful Supreme Court nominee

August 5, 2005

There are a variety of compelling concerns about John Roberts’ Supreme Court nomination, but one shortcoming that hasn’t been explored yet is his apparently poor memory.

It started a couple of weeks ago when we learned that Roberts said he had no memory of belonging to the Federalist Society, despite serving as a member of the steering committee of the organization’s Washington chapter in the late 1990s. OK, maybe the group didn’t leave a lasting impression on him.

More recently, Roberts prepared a 67-page response to a Senate Judiciary Committee questionnaire, responding to a variety of inquiries, including “specific instances” about his pro bono work, how he had fulfilled those responsibilities, and the amount of time he had devoted to them. Roberts didn’t mention his work on behalf of gay-rights activists in the Romer case. He apparently didn’t remember the work.

“John probably didn’t recall [the case] because he didn’t play as large a role in it as he did in others,” [Walter Smith, who was in charge of pro bono work at Hogan & Hartson] said Wednesday.

Then we learned that Roberts omitted information on the same Senate questionnaire about having been a registered lobbyist in 2001. Why? Because he forgot.

In a letter to the Senate Judiciary Committee’s ranking Democrat, Sen. Patrick J. Leahy of Vermont, Roberts explained that his firm had registered him as a lobbyist because he met with government lawyers as part of his work representing the Cosmetic, Toiletry and Fragrance Assn. At the time, the association sought to block a proposed labeling regulation by the Food and Drug Administration. […]

Roberts explained that because his work for the association consisted of preparation for litigation, “the question about lobbying on the questionnaire did not trigger a memory of those meetings.”

Taken individually, these don’t seem like critically important omissions. But taken together, it seems Roberts is awfully forgetful, isn’t he?

Forgetful about what?

  • I can imagine someone strongly committed to the law and ambitious to advance therein not identifying with the lobbying role even though he was technically listed as one by his firm. Similarly, giving advice on the Romer case where he wasn’t a principal attorney, as part of his firm’s pro bono activities, might not register as worth reporting either. Being an officer in the Federalist Society, which has been discussed quite a bit the last few years, seems a litttle odd but not that odd; it is a legal (in two senses of the word) organization.

    All in all, I’m inclined to waive these three concerns. In my capacity as a demographer I have served as an expert witness in some federal cases related to land claims of native Americans; most of that was pro bono and of no academic significance to me. I have also given advice to any number of academic and civic organizations which I wouldn’t include on an academic résumé even if I remembered them. My guess is that Roberts regards those “outside” activities as not worthy of mention or memory.

  • The Federalist lapse is serious in that he was a member of the steering committee . . . assuming that means he did anything at all. People treat committees and boards in different ways, and often groups want names to add influence and appeal to the organization/chapter. Roberts in the late 90’s certainly fits the bill in that sense.

    But the other issues are trivial, as Ed points out. I still have to read the articles Analytical Liberal put forward, but unless there’s anything startling there, I have to say that everything I’ve seen attacking this guy has been mediocre at best.

  • OK Analytical Liberal, I’ve read the Roberts articles, and I have to say. . . not much there! But isn’t that the point, that we don’t know? Do I want to know? Sure, but that doesn’t automatically mean Roberts is evil.

    The Alliance for Justice, of course, disagrees, and they think it’s clear that, despite knowing next to nothing about him, “What exists suggests that he ‘may combine the stealth appeal of Souter with the unwavering ideology of Scalia and Thomas.’� They note that Roberts is in tight with those evil guys who like to do terrible things like promoting:

    “the rights of individuals, free enterprise, private ownership of property, balanced use of private and public resources, limited government, and a fair and efficient judiciary�

    Which is apparently code for, “a conservative, anti-government legal agenda hostile toward environmental and worker protections.� Oh, I didn’t get that memo. I thought it sounded pretty good for a second. Better than, say, creating a paternalistic theocracy.

    Or, the LegalTimes.com piece blasting Roberts for writing an article supporting the Scalia claim that “When the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” The dastardly Roberts felt that a rigorous standing doctrine is:

    “an apolitical limitation on judicial power. It restricts the right of conservative public interest groups to challenge liberal agency action or inaction, just as it restricts the right of liberal public interest groups to challenge conservative agency action or inaction.

    “Far from an assault on other branches, this is an insistence that they are supreme within their respective spheres, protected from intrusion however welcomed or invited — of the judiciary.”

    I’m getting chills-this guy sounds terrible! Balanced? Apolitical? He must be a right wing lunatic! Frankly, I’m sick of the Endangered Species Act being used as a big-government power grab, and not saving anything; it’s a bad law. Sorry if that makes me pro-balanced use of private and public resources and limited government. And sorry that we live in a world where a clown and a mute are the only guys telling it like it is.

    Or there is the Daily Herald shocker by John B. Quigley. Even he admits that:

    “The problem is not John Roberts. The problem is the president’s approach to judicial appointments.â€?

    Why? Because “Bush is appointing only judges of Roberts’s political stripe.â€? What stripe is that? We are left to wonder; I’ll go out on a limb and say, “conservative.â€? Does that make Roberts bad, or even Bush bad (in this very limited example)? Not really. It makes liberal presidents appointing moderates and conservatives look like idiots for not doing what they could to shape the future, but instead pandering to a perceived PC issue. If you support particular ideas (for instance, parts of conservatism), you should appoint individuals that share those views, right? Or you don’t really support those ideas.

    All in all, I have yet to read anything more than this is a hard working guy who supports limited governmental intervention and a slightly stricter interpretation of the constitution than liberals are comfortable with. No surprises, no secret agenda. If there is a surprise, it’s that Bush might have actually, for once, made a reasonable decision. Now THAT should be reason to worry.

  • I’m sure he also forgot a lot of things that WOULDN’T be politically embarrasing, and I for one will patiently wait for him to tell us what they were.

    /snark

  • I’m thinking of that great Jack Benny skit where
    he played this guy that nobody could remember.
    He could rob a bank, and no one could identify
    him.

    It’s the inverse of this situation, of course.
    But there’s something funny about it. This
    brilliant, relatively young man, can’t remember
    anything.

    Eadie, why are you so pro Roberts? Unload
    your secret leanings, please.

    At one point he said he respects Supreme
    Court precedent. If he doesn’t forget about
    this, I really don’t have any major objections
    to this confirmation. Well I do, actually, but
    there ain’t gonna be anybody better.

  • Secret Leanings? Hark, I’m not sure I like what you’re implying!

    Want a wish list?

    To have the Democrats formulate and execute effective long term planning, rather than being played by the amoral neo-cons. In terms of Roberts, this means not running around making baseless claims backed up by speculation and innuendo; that’s Rush’s job.

    Like I wrote, I’d like to know more about Roberts. But it really does look like he might be OK, and if that is the case, I have a feeling all this “Roberts must be terrible because we don’t know about him� hand wringing is, well, shrill, pointless, and missing the mark. Democrats need to get out and excite people, not react to what may be a well planned ruse to sucker them prior to the next SCOTUS nomination.

    If Democrats want to influence the Supreme Court appointment, win back the Senate, or better yet, the presidency. Stop acting like abortion is a right, and admit it’s a difficult and terrible decision to have to make, but that outlawing it will help nobody. Stop hating guns and gun owners—a well armed citizenry is the best deterrent to crime. Start nominating candidates with a pulse like Clinton. Stop abandoning the southern Democrat politicians and conservative Democrats. Let religion, outside government influence, be acceptable as a topic of conversation. Stop letting Republicans be the ones talking about ecologically sound energy and development.

    And above all, remember that the minority part doesn’t have a say in this, unless Democrats want to filibuster a decent nominee at the cost of becoming the useless obstructionists neo-cons want them to be.

  • Eadie,

    I appreciate that you took the time to read the material to which I linked earlier in the week. Those were merely some of the thousands of items available if one takes the time to look for them. As I’m sure you noticed (and others who may have followed the links, too), virtually NONE of the material has been authored by Roberts himself. And THAT is the problem.

    Somehow, it seems to me that you, Eadie, have construed my commentary here to be either advocacy for Roberts’ rejection and/or an opinion that Roberts’ is “evil” in some way. If that is not your interpretation of my commentary, then fine. But neither of those interpretaions is accurate. I will try to be a little more clear here concerning my position, at the moment, on Roberts’ nomination.

    My points, pure and simple, are that (A) we just do not know Roberts’ true nature as either a jurist at the lower court level (two years is not enough of a record to make a fair and accurate evaluation) or his likely behavior on the SCOTUS, a decidedly different and much more powerful venue for a jurist than any other in the American system of jurisprudence; and (B) we — not just the Dems in the Senate, a minority party or not, but WE, you, me, ALL of the American people, have a RIGHT and a NEED to know everything that is knowable, that has any relevance, about Roberts’ potential rulings as an Associate Justice on the SCOTUS.

    Why should the President have access to personal interviews with Roberts, to all of his writings in whatever capacity — especially when “we the people” were paying him to do that writing AND when the only applicable Circuit Court of Appeals decision on point (from the 8th Circuit) says the Solicitor General’s “client” is NOT the President OR the White House OR even the executive branch of the federal government, BUT THE AMERICAN PEOPLE AS A WHOLE!! This is not a hard concept to understand, one that was successfully pushed by Ken Starr against Hillary Clinton during Monicagate, and at that time the SCOTUS refused to hear the White House’s appeal.

    We have the right, through our duly elected representatives (i.e., the Dems in the Senate) to see everything the President does (or, knowing Bush as we do, everything he has the option of seeing should he choose to do so). The executive branch and the Senate are co-equal in the nomination and confirmation process; both have sworn to uphold and defend the Constitution; and both have equal power and responsibility to do that which is in the best interests of the American people.

    A game of “gotcha” that Bush has been practicing with his recent series of nominations — both judicial as well as with Bolton — is NOT in the best interests of the American people. And nominees who are coached by the Administration to reveal as little of either their judicial philosophy or their possible actions if confirmed to the SCOTUS bench, to in effect be “stealth” candidates, is — and should be viewed as such by the players (Bush and ALL Senators), the CCCP (Compliant Complicit Corporate Press), and the public — anathema in what purports to be an open democracy. This is particularly true where SCOTUS nominees are likely to remain there for 25, 30, maybe even 40 or more years, with the ability to influence how you and I and every other American can choose to live their lives.

    So, at this time: (A) I don’t know whether Roberts is “evil,” but I want access to ALL of his “record” — and the material which documents it — with which to make that assessment. And (B), at this point in time, I’m not advocating that Roberts’ be filibustered, but I reserve that option if, Option A has been denied by Bush’s and/or Roberts’ refusal to provide a thorough and complete record OR if that record reveals a nominee that is a real threat to the “living Constitution” precedent and philosophy that would place in serious jeopardy those things that most progressives hold sacred AND have led to a role for government that created the largest middle class in the world.

    I know this is lengthy, but I wanted to be clear on my “bottom line”: we have a right to know as much about Roberts as there is to be known; and if we don’t get that information or the information reveals an unacceptable threat to a progressive view of government’s role in our lives, then he must be filibustered.

    P.S. It is Saturday 3 pm EDT; I just got to look at this post and the comments, so I hope Eadie and others see my thoughts.

  • AL,

    I’m reading this late, too (1:46 PDT). I very much appreciate your commentaries in general and this one in particular. I wish you – or someone with your knowledge, insight and fortitude – were on that Judiciary Committee or its staff.

    But when re-election requires a Senator to bring in at least $10,000 a day (as of several years ago) I’m afraid my wish is no more than a pipe dream.

  • Ed,

    Thanks for your kind words. I have to tell you that I personally feel dwarfed by your grasp of history and academic analyses that you so cogently express here. I always look forward to reading them, and following your links too.

    As for my being on the Senate Judiciary Committee or its staff, I AM available and I would love to work with the Committee (and, oh, I do need a job, too!). Sooooo…if you have any connections in D.C., just point me in the right direction!! Thanks.

  • Eadie,

    Stop hating guns and gun owners—a well armed citizenry is the best deterrent to crime.

    Last I checked the vast majority of the nations in Europe are evidence to the contrary of this statement.

    having said that, I think the Dems would go a loooong way to regaining the Senate and the House if they were able to frame their views on guns and gun owners better.

    • Comments are closed.