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Thursday, July 21, 2005

Court Nominee's Life Is Rooted in Faith and Respect for Law - New York Times

Court Nominee's Life Is Rooted in Faith and Respect for Law - New York Times The New York Times
July 21, 2005
Court Nominee's Life Is Rooted in Faith and Respect for Law
By TODD S. PURDUM, JODI WILGOREN and PAM BELLUCK

This article was reported and written by Todd S. Purdum, Jodi Wilgoren and Pam Belluck.

WASHINGTON, July 20 - He is the son of a company man, and he has lived a loyalist's life. His teachers remember him as the brightest of boys, but his classmates say he never lorded it over them. He was always conservative, but not doctrinaire. He was raised and remains a practicing Roman Catholic who declines, friends say, to wear his faith on his sleeve.

And like his first judicial mentor, Henry J. Friendly of the federal appeals court in New York, John G. Roberts is an erudite, Harvard-trained, Republican corporate-lawyer-turned-judge, with a punctilious, pragmatic view of the law.

"I do not have an all-encompassing approach to constitutional interpretation; the appropriate approach depends to some degree on the specific provision at issue," Judge Roberts wrote in response to a written question during his 2003 confirmation to the federal appeals court in Washington. "Some provisions of the Constitution provide considerable guidance on how they should be construed; others are less precise.

"I would not hew to a particular 'school' of interpretation," he added, "but would follow the approach or approaches that seemed most suited in the particular case to correctly discerning the meaning of the provision at issue."

From his childhood as the son of a plant manager for Bethlehem Steel and a standout student through his career as a judge and lawyer for the government and private corporations, friends, colleagues and teachers say Judge Roberts has taken life one step - and one case - at a time.

Laurence H. Tribe, a liberal professor of constitutional law at Harvard, remembers Judge Roberts as a student there and has kept in touch with him over the years. He does not recall Judge Roberts as a political conservative when he studied there.

"He's conservative in manner and conservative in approach," Mr. Tribe said. "He's a person who is cautious and careful, that's true. But he is also someone quite deeply immersed in the law, and he loves it. He believes in it as a discipline and pursues it in principle and not by way of politics."

In his 2003 written testimony, Judge Roberts cited Justices Oliver Wendell Holmes, Louis D. Brandeis, Felix Frankfurter, Robert H. Jackson and John Marshall among the Supreme Court judges he most admired. One was a Republican, three were Democrats and one was a Federalist, but all were deeply influential in their day, and all would make any law professor's short list of all-time greats.

Judge Roberts's friends say his approach to the rest of his life is similarly embracing.

"When I look at the people who were his friends, and who are his friends, there's not a political component to it that I can detect," said Charles E. Davidow, another law school classmate who roomed with him when they were both clerking, for separate judges, in New York.

"It's not as if his friends are all conservative, or all liberal, or all anything else. His friends are his friends, and he's not the kind of personality where conversations with him tend to turn political."

Judge Roberts is indisputably a Republican: He advised Gov. Jeb Bush of Florida during the 2000 presidential vote recount; gave $1,000 to George W. Bush that year; and contributed about $2,700 to various Republican candidates over the years. But he has given more - almost $7,500 - to his law firm's political action committee, which supports Democrats and Republicans in roughly equal measure.

In a law school class that included one current senator, Russell D. Feingold, a Wisconsin Democrat, and one former one, Spencer Abraham, a Republican from Michigan; at least two congressmen; and countless managing partners of the nation's leading law firms, Judge Roberts always stood out, but not apart. Though he earned more than $1 million a year by the time he left the blue-chip Washington law firm of Hogan & Hartson to go on the bench two years ago, he often ate lunch in the firm cafeteria, chatting with co-workers and junior colleagues.

"There are partners who spend that kind of time, and there are partners who don't," said Patricia A. Brannan, a partner at Hogan. "He always made time."

Paul Mogin was a year behind Judge Roberts at Harvard Law School and his roommate there for two years. He followed Judge Roberts as Judge Friendly's clerk on the Court of Appeals for the Second Circuit and chose him as the best man at his wedding.

"By temperament, he's not a flame-thrower, not somebody you'd expect to willingly or readily overrule a precedent," Mr. Mogin said. "He's somebody who has respect for institutions. I think institutions have been important to him in his life, like Harvard, the Catholic Church and the Supreme Court. He's not likely to be anybody to do anything too radical."

Early Thirst for Learning

As early as elementary school, John G. Roberts stood out as the smartest kid in class. He regularly scored 100's, took five years of Latin in four years of high school, had his essays read aloud as examples for his peers.

Dorothea Liddell, his eighth-grade math teacher at Notre Dame, a Catholic school in the small town of Long Beach, Ind., where Judge Roberts grew up, said she used young John as a barometer as she experimented with the unfamiliar curriculum known as New Math.

"If he understood the concept, I was good," Mrs. Liddell remembered Wednesday as she sat in one of the school's un-air-conditioned classrooms, reminiscing with several former students. "If not, teach it all over again."

Born in Buffalo, Judge Roberts arrived in Long Beach, a flag-bedecked town of 1,500 residents on the shore of Lake Michigan, around fourth grade with his parents when his father, John Sr., helped open the Bethlehem Steel mill in Burns Harbor, a half-hour's drive away. At first the family - John and his three sisters, Cathy, Peggy and Barbara - lived by the lake amid the summer cottages of wealthy families from Chicago, about 60 miles away. But in 1965, the family built a brown split-level house with five bedrooms on a quiet street a couple of blocks away.

Like other steel executives' children, John Roberts went to private school, first next door to his family's parish at Notre Dame, and then to an all-boys boarding school, La Lumiere, a bucolic retreat on a pond in nearby LaPorte.

Besides being an academic star, he was a scrappy athlete, a captain of the football team despite his mediocre play, and competed in wrestling and track. In a small school of about 125 students, John Roberts was also on the student council executive committee (he lost the race for senior class president to his best friend), the student activities committee, the editorial board of The Torch student newspaper and the drama club.

The school yearbook from 1972, his junior year, shows he played Peppermint Patty in the production of "You're A Good Man, Charlie Brown."

He impressed almost everyone. Lawrence Sullivan, his high school math teacher, recalled on Wednesday, "It became very, very clear and evident when he first came here that he was a person who was destined to do big things."

A Gift of Persuasion

Though Judge Roberts at first aspired to be a history professor - a former roommate said he chose Harvard over Amherst intending to combine undergraduate work with a Ph.D. - he showed early signs of the skills that would serve him so well as a litigator.

"The English teacher used to talk about his papers after he had written them because they were outrageous but very well crafted," remembered John Langley, an emergency room doctor in New Orleans who was a class below Judge Roberts at La Lumiere. "He could take an argument that was borderline absurd and argue for it so well that you were almost at the point of having to accept his stance even though it was intuitively obvious that it was absurd."

Few people remember him or his parents having much interest in political activity, though Mr. Sullivan said "he had a conservative bent," in contrast to the faculty at La Lumiere.

Asked how her son became a solid conservative, Rosemary Roberts said, "I don't know, only God will know," but she said her son's views are shared by other family members.

The elder Robertses now live in a golf-course community in Ellicott City, Md., near Baltimore, and she recalled: "We were very concerned about the news and everything. We have always been a family that was interested in things other than ourselves."

In his senior year, in David Kirkby's Morals class, John Roberts went beyond a simple book-report assignment to pore through a dense set of seven philosophy tomes, then proceeded to hold forth for several class periods while some of his classmates struggled to fill a few minutes. "If bells hadn't rung to end the class, he could probably be still talking now, 32 years later," Mr. Kirkby said, laughing, on Wednesday.

Tenacity was a hallmark on the football field too.

"He wasn't that big, he wasn't that fast, but he wasn't bashful about butting his head against guys three times his size," said Bob MacLaverty, who beat John Roberts in that student council election, but remained close enough friends that they stood at each other's weddings.

John Roberts and John Langley worked summers at the Burns Harbor mill - on the floor, not in offices, like their fathers.

"They were down-and-dirty jobs, but they paid well, and the kids had to learn how to take a riding from the regular employees who were not going to college," recalled Mr. Langley's mother, Joan.

Beth Linnen, a former classmate at Notre Dame elementary school, still remembers John Roberts's nerdy glasses and winning smile. "If you said to me, 'Who was the smartest kid in your grade-school class?' I would have said, 'John Roberts,' " Ms. Linnen said. "Some kids who are smart are sort of geeky, but he just got along with everyone."

Andy McKenna, who is now chairman of the Illinois Republican Party, was two years behind Judge Roberts at La Lumiere, yet well aware of his academic legend.

"When he got things wrong, people thought there might be something wrong with the teacher, not with him, because he was so off the charts," Mr. McKenna said on Wednesday. "Not many people could keep up with him."

Years at Harvard

The same was true at Harvard College, where Judge Roberts graduated summa cum laude in 1976, and Harvard Law School, which he entered that fall.

Richard Lazarus, a law school friend, tells the story of a mutual friend, a fellow student who "made the mistake of joining John's study group first year." After two weeks, the friend was miserable.

"He thought he may well have made a serious mistake because he wasn't good enough," said Mr. Lazarus, now a law professor at Georgetown University. "Then he started studying with some other people and he thought, 'Wait a minute - I'm not the problem.' It was because he was studying with John."

Judge Roberts, said Mr. Lazarus, "worked all the time and held himself to high, high standards. One day, John was worrying that he hadn't done well on an exam. I said 'John, I'll bet you $25 you got at least an A-minus on the exam.' He wouldn't take the bet. It shows you what he was like. The rest of us would have been perfectly happy with the A-minus."

By all accounts, during his Harvard years, Judge Roberts excelled academically but also stood out for his even-tempered nature and his ability to engage with people with many different viewpoints. Many of his law school classmates were aware that Judge Roberts was somewhat conservative in outlook, but, they say, he was not politically active.

"He was, I would say, conservative in the old-fashioned sense, not the new modern sense," said Bill Kayatta, a lifelong Democrat who served on the law review with Judge Roberts. "He had a sort of thoughtful respect for institutions, history, precedent, a willingness to consider change but not revolutionary. He believed in having some humility about one's ability to suddenly decree that those who came before you were wrong, but he was not a stick in the mud either."

Mr. Kayatta added: "John and I probably spent several hundred hours debating every issue known to humankind, coming from very different perspectives on many issues. He's the type of person you could debate any issue with, and you could sometimes change his mind and sometimes he would change yours. He was brilliant, but modest, the latter being unusual at Harvard Law School. He was someone who's just soft-spoken and brilliant, but yet very interested in what other people had to say."

Young Conservative

By the time Judge Roberts got to the law school, the Cambridge campus was no longer the radicalized haven of liberalism it had been during the Vietnam War era, several former students said.

Representative John Barrow, Democrat of Georgia and a law school classmate, recalls those years as "almost a happy time between the activism of the 60's and the hostile time of the 80's," when the faculty was deeply divided over the curriculum and legal studies. Judge Roberts's views did not much stand out.

"He was more conservative than others," Mr. Barrow said, "but to be honest, I can't remember having any political discussions."

Representative Brad Sherman, Democrat of California, who worked on Jimmy Carter's presidential campaign as a first-year student, did not know his classmate that well. "I couldn't tell you whether he inhaled or didn't," he said. "I didn't hang out with the smart kids."

Don deAmicis, another classmate who is now a partner at Ropes and Gray in Boston, said the law school of that era could not be described as "a conservative institution, but I don't think that those who were more conservative felt alienated by the institution."

Indeed, Stephen Galebach, now a lawyer in Andover, Mass., arrived at the law school after a stint in the Marines, described himself as a "Reaganite conservative" and said: "I fit quite naturally. It's not like I took guff from people. People were interested in interesting things about people."

Mr. Galebach recalled that he was more politically outspoken than Judge Roberts ever was on campus. "From our time in law review, it wasn't like John was a gung-ho conservative," he said. "He wasn't active. He wasn't a gung-ho liberal on liberal causes. He was always more focused more on the craftsmanship" of the law.

Mr. Galebach said the fact that Judge Roberts's position at the law review was managing editor "tells a lot about John." He added: "Managing editor is the one who just makes sure everything is done to a high level of quality. It's the ultimate position of not injecting your own views, but allowing other people to reach high levels of scholarship."

Judge Roberts himself wrote two "notes" for the review, one on the Constitution's contracts clause and the other on the takings clause, but mostly edited the work of professors and legal scholars who contributed.

A Mentor in New York

After graduation, Judge Roberts went to clerk for Judge Friendly, the former presiding judge of the appeals court in New York who by then was winding down his long career but was still widely regarded as the pre-eminent appeals court judge of his era. Judge Friendly, too, had graduated summa cum laude from Harvard and Harvard Law School, where he had studied under Justice Frankfurter before clerking for Justice Brandeis on the Supreme Court.

Working for Justice Brandeis, Judge Friendly had helped with his famous dissent in Olmstead v. United States, in which Justice Brandeis argued that the government had violated a bootlegger's constitutional rights by wiretapping his telephone. In ringing language that decades later would help form the basis for a string of privacy rights rulings by the court, Justice Brandeis argued that the framers had "conferred, as against the government, the right to be let alone - the most comprehensive of rights, and the right most valued by civilized men."

After work as a lawyer for Pan American World Airways, Judge Friendly was appointed to the federal bench by President Dwight D. Eisenhower and was sometimes frustrated by the liberal activism of the Supreme Court under Chief Justice Earl Warren. He was famous for writing his own opinions, which often found their way into casebooks, and asking his clerks not for written memos but for oral defenses of their ideas.

"He had a proper view of the limited role of judges," another former clerk, Robert Weiner, now a lawyer in Washington, said of Judge Friendly. "He had a guiding principle that when deciding a case, a judge should always think about how the ruling would be cited back at you in the next case. He wasn't going to vary his principles from case to case, just because he may have liked the facts differently. He often decided cases in ways he would have preferred not to."

Mr. Mogin said that Judge Friendly, who died in 1986, "had his favorite former clerks, and Roberts was always one of them."

Judge Roberts's next assignment was a clerkship for a more conservative judge, Chief Justice William H. Rehnquist, then an associate justice of the Supreme Court, before joining the Reagan administration as an aide to Attorney General William French Smith.

Mr. Lazarus, who roomed with Judge Roberts back then, said he was not apolitical. "During the 1980 presidential election, we were roommates and we had a presidential election party, and he had put an elephant on the TV and I put a donkey," Mr. Lazarus said.

But, he added, Judge Roberts "said to me a long time ago there was no case he had been on where he couldn't have done the other side."

In Washington

Judge Roberts later worked as an associate in the White House counsel's office in the Reagan administration before entering private practice at Hogan & Hartson in 1986, then returning to government service as principal deputy solicitor general in the first Bush administration, helping to argue its positions before the Supreme Court.

In both jobs, he took positions on behalf of clients that he has said should not necessarily be attributed to him, insisting in his confirmation hearing two years ago, "My practice has not been ideological in any sense. My clients and their positions are liberal and conservative across the board."

In private practice, he has represented some of the world's biggest automakers, the National Collegiate Athletic Association and the National Mining Association.

But it is his work in the solicitor general's office that has drawn some of the sharpest early criticism from the liberal advocacy groups that are scrutinizing his comparatively limited public record.

In 1991, he signed a brief asking the court to lower the wall of separation between church and state.

The government had asked the Supreme Court to discard an earlier test and overturn a lower court ruling that held a clergyman could not give an official address at a junior high school graduation in Providence, R.I. It asked the court to rule that "civic acknowledgments of religion in public life do not offend the establishment clause" of the Constitution "as long as they neither threaten the establishment of an official religion nor coerce participation in religious activities."

At the time, officials in the first Bush administration told reporters that the reason for intervening was a tactical decision to try to draw out Justice David H. Souter, then the court's newest member, and get him on the side of the administration, which was hoping eventually to change the approach to religion in public settings.

In the end, the court voted 5 to 4 against the administration and upheld the lower court's decision. Among those in the majority were Justice Souter and Justice Sandra Day O'Connor, whose seat Judge Roberts has been nominated to fill.

Barry W. Lynn, the executive director of Americans United for Separation of Church and State, said Wednesday that Judge Roberts's participation in the case makes him "unsuited for a seat on the U.S. Supreme Court." He said that if confirmed to the court, Judge Roberts would "open the door to majority rule on religious matters."

Friends of Judge Roberts and his wife, Jane Sullivan Roberts, a lawyer at Pillsbury Winthrop Shaw Pittman, say they share a strong faith. "They are deeply religious," said Fred F. Fielding, the former White House counsel for President Reagan, "but they don't wear it on their sleeves at all."

The couple are members of the Church of the Little Flower in Bethesda, Md., a Catholic congregation that includes about 1,500 families. Like many Washington-area churches, its members have included prominent political figures. Thomas O'Neill, the former speaker of the House known as Tip, as well as Edmund Muskie, the former United States senator, secretary of state and presidential candidate, once attended, said Gary R. Davies, a church deacon. More recently, L. Paul Bremer III, who served as the United States' administrator in Iraq, was a member.

The church, Mr. Davies said, is not particularly political, though it does organize two or so busloads of members each year to participate in an anti-abortion rally marking the Roe v. Wade decision. "I have never heard anyone talk about politics," Mr. Davies said. "It just does not belong."

Some who know Judge Roberts say he does not let his personal beliefs affect his legal views. "He's not going to allow political or theological interference with his opinions," said Mark Touhey, a partner in the Texas law firm of Vinson & Elkins.

Shannen W. Coffin, a friend of Judge Roberts and a former Justice Department lawyer, said: "John's faith is his faith, and his approach to the law is a separate issue. If it has any effect, it is in the sense of restraint, that he is not and the role of the judge is not to be the center of the universe. It stems from the sort of humility of a faithful person."

The Robertses frequently attend events at the College of the Holy Cross, in Worcester, Mass. Jane Roberts is a graduate of the school and has been a trustee for the last four years.

"They are devout Catholics," said the Rev. Michael C. McFarland, the college president. "They are not the kind of people who would be in your face," he added. Their religion "would affect their personal lives, but they are very professional in their work."

Mr. Coffin said that after the Robertses married nine years ago when they were both in their 40's, they tried to have children. After a several failed adoption efforts, he said, they "got lucky" with two children, Josephine and John, now 5 and 4.

In a sign of just how small the elite world of the Supreme Court bar and bench can be, the Robertses have attended Holy Cross events with Justice Clarence Thomas and his wife, Virginia, according to Father McFarland. Justice Thomas is also an alumnus of Holy Cross and a trustee.

"I know they know each other," said Father McFarland, but he added he didn't know "how well." Both couples, the Holy Cross president said, know Msgr. Peter Vaghi, who married the Robertses in 1996 in Washington and now is the pastor at the Bethesda church where the Robertses worship.

Monsignor Vaghi serves as the chaplain of the John Carroll Society, a 51-year-old Washington-based charitable and social organization. Judge Roberts's wife is a member of the board of governors, as is Mary Ellen Bork, the wife of Judge Robert H. Bork, whose nomination to the Supreme Court was bitterly opposed by Democrats and failed in 1987.

There is little in Judge Roberts's known record to suggest he could ever be so polarizing a figure.

In his confirmation testimony two years ago, he said that judges should be "ever mindful that they are insulated from democratic pressures precisely because the framers expected them to be discerning law, not shaping policy," and added: "That means that judges should not look to their own personal views or preferences in deciding the cases before them. Their commission is no license to impose their preferences from the bench."

That is not to say that Judge Roberts has a low opinion of his own persuasive powers, as a lawyer before the court or a justice on it. His friends note that he often recounts the story of losing a Supreme Court case with none of the justices ruling in his favor.

Unable to explain to his client why he had lost 9 to 0, he finally said, "Because there are only nine justices on the court."

Pam Belluck reported from Boston, and Jodi Wilgoren from Long Beach, Ind., for this article. Reporting was contributed by Jeff Gerth, Glen Justice, David D. Kirkpatrick, Neil A. Lewis and Eric Lipton from Washington; Gretchen Ruethling from Chicago; and David Staba from Buffalo; and Katie Zezima from Boston.

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