By Bob Roehr
WASHINGTON – The marathon confirmation hearings for John G. Roberts to be Chief Justice of the United States raised issues of direct concern for the LGBT community for what many believe to be the first time in such a process.
Sen. Dick Durbin (D-Illinois) pressed on Roberts’ assistance in preparing the lawyer who argued the Romer case before the Supreme Court. That was the first major victory for the community, where the Court struck down Colorado’s anti-gay Amendment 2. Durbin asked, “If the other side had come to you first, would you have helped them?”
Roberts responded, “It’s a hypothetical case; I think I would have.” He went on to discuss pro bono work that he had performed for the association of state attorneys general and state governments before the Court. “It has not been my general view that I sit in judgment of clients when they come to me,” that is the role of the court.
He said that people become lawyers for different reasons, sometimes to advance a particular cause that they believe in strongly. “I developed as a lawyer because I believe in the rule of law…That is in play regardless of what the cause is…Lawyers serve the rule of law, regardless of the client.”
Roberts defended his two year record on the bench and the 50 decisions that he has participated in during that period. “I don’t think that you can read those opinions and say that I am an ideologue.”
Sen. Russ Feingold (D-Wisconsin) asked about a memo Roberts wrote in September 1985 as a young lawyer in the White House Counsel’s Office. In it he suggested deletion of the phrase from a draft speech for the President that read, “As far as our best scientists have been able to determine, the AIDS virus is not transmitted through casual or routine contact.”
The Senator pointed out that the CDC had issued guidelines to that effect the previous month, and asked Roberts why he had made the suggestion.
Roberts said, “This was a statement by the President and I didn’t want the President giving out medical advice if it was a subject of some uncertainty…I wanted to make sure that they were 100 percent confident that what the President was going to be saying about a medical issue, they had a complete confidence in it.”
Feingold also asked, “Do you believe that the Congress has the power under the Constitution to prohibit discrimination against gays and lesbians in employment?”
Roberts said he would not express an opinion on the legal question of congressional authority on issues that might come before the Court. However, he indicated a relatively broad view of congressional authority to enact legislation. He added, “Personally, I believe that everybody should be treated with dignity in this area and respect.”
Sen. Charles Schumer (D-New York) asked about the general right to privacy contained within the Constitution with regard to the Lawrence decision that struck down state sodomy laws.
Roberts quibbled about what is meant by the term “general right” and declined to comment on a specific case, as he has done frequently during the hearings. However, he added, “I think there is a right to privacy protected as part of the liberty guarantee in the due process clause” of the Constitution.
Schumer also raised questions of the type of judicial conservative that Roberts is, and asked pointedly if he considered himself to be same mold as Justices Antonin Scalia and Clarence Thomas.
Roberts discussed some degrees of differences between them and asserted, “I will be my on man on the Supreme Court.” His intellectual firepower, experience, and marathon grilling by the Senators suggested that he would be.
The Committee is expected to approve Roberts’ nomination on Sept. 22, with all Republicans and perhaps some Democrats voting their support. The entire Senate will address the nomination the following week, with no prospect of a Democratic filibuster. Roberts is likely to preside over the Court when it convenes for its fall session on Oct. 3.