Tory

I assume John Roberts' reputation for brilliance is based on something more than a habit of doing the New York Times' Sunday crossword puzzle in ink.

I had a hard time paying attention while I was away, but all the stories I read about him made a point of Roberts' supposed brilliance.

But none of them explained what makes him so all fired brilliant.

I know he had a stellar career at Harvard and he clerked for Rehnquist and dummies don't clerk for Supreme Court Justices.  But surely a reputation for brilliance can't be based on what you did 25 years ago.  If it's been all down hill from there, then he was brilliant.  Having been brilliant once upon a time is usually considered a tragic note in someone's life story.   Is Roberts the intellectual equivalent of a star college athlete who never lived up to his promise when he made the pros?

His two year tenure on the bench has been a lesson in how to serve your Right Wing masters while not leaving any real evidence that you've been serving your Right Wing masters that can be used against you in confirmation hearings should someday a Republican president need to nominate you to the Supreme Court because he desperately needs an easy win.

I suppose such intellectual gymnasitcs is evidence of a form of brilliance.  Look, Ma, watch me weasel with no hands!

Unless the word brilliant is being used because the words boring, cipher, empty suit, political hack, corporate lackey, timeserver, coatholder, and stooge are all considered gauche when discussing Supreme Court nominees, or it's shorthand for "This guy thinks like I do," which it often is, under any circumstances, in every field and profession, then Roberts' reputation for brilliance must be based on his brilliance as an advocate.

But again nothing I've read points to any particular case he's argued, either as a private attorney or as deputy solicitor general as evidence of his brilliance.

The Bush Leaguers won't release Roberts' writings from his days working for the Reagan and Bush I administrations, but cases he's argued are matters of public record.  It should be possible to find a brilliant passage or two or three or a dozen from his crosses or closings or briefs.

But this would clash with what appears to be another inviolable trope of stories about Roberts---none of his past cases are to be treated as indications of what the man really thinks or believes.

He may surprise us!

If we say that enough times maybe it'll come true.

So, what does that mean?  He's been a brilliant hack?

That's what Rumpole says lawyers are, taxis for hire, taking on any and all passengers who can pay the fare and delivering them wherever they want to go.

We're suposed to be impressed that Bush has nominated to the Supreme Court a man whose mind has a running meter attached?

Roberts himself has more or less claimed this about himself.  He's compared himself to John Adams defending the British soldiers who took part in the Boston Massacre:

There is a longstanding tradition in our country, dating back to one of the more famous episodes, of course, being John Adams's representation of the British soldiers involved in the Boston Massacre, that the positions a lawyer presents on behalf of a client should not be ascribed to that lawyer as his personal beliefs or his personal positions.

In Roberts' view then, John Adams was just a hack too.

A local civil rights attorney, Michael Sussman, was at Harvard Law with Roberts and later faced off against him in a desegregation suit the NAACP brought against the Jacksonville, Florida school district, with Roberts representing the school district.  Sussman seemed to make the case that Roberts must be regarded as a hack when he told the Times Herald-Record, "Here's the thing people have to remember.  When you're a lawyer, your role is to represent someone else."

But then he added, "You can choose clients and cases that, if you will, represent your ideology."

Sussman has spent his career taking on civil rights cases.  Roberts' career as an attorney was spent mostly defending the interests of corporations.

When John Adams agreed to help defend the soldiers he was doing so on the principle that everyone has a right to a fair trial.   He was helping to stop a legal lynching.  This wasn't an example of Adams being a dutiful legal hack.  It was an expression of his character and completely in keeping with the beliefs that would make him the most ferocious advocate for Independence in the Continental Congress.

Everything about Roberts' career, as a clerk, as an advocate, and as a judge, indicates that if he'd been around back then to take on the soliders' case he wouldn't have done so as a legal hack either.  He'd have defended them on the grounds that the soldiers were the King's men and as the King's men they were as untouchable by the colonial courts as the King himself.   King George can do what he wants and the soldiers are just his tools.

If those same soldiers had later sued King George for compensation for wounds they got in battle against the Rebels or if their widows had sued for their pensions, Roberts would still have taken the King's side.

That's been his career.  Brilliant or not, John Roberts is first, last, and always a loyal servant of the King.

That's why he's been nominated to the Supreme Court.  The King loves his servant.

Comments

[SAP]

Excellent post, Lance.

[Markg]

I read the NYT article that quoted samples of his judicial opinions and I came away embarrassed for the man. utterly commonplace analysis made in a pompous and pretentious "learned, wise judge" style, with pathetic attempts at whimsy thrown in.

[carla]

I'm admittedly dense when it comes to understanding judicial opinions or whether or not someone is competent to serve as a jurist. I leave that to those smarter and more able than myself.

However I'm not entirely convinced that Roberts is the desperately bad choice that some on the left are concerned about.

[Anne Laurie]

Once again, you said what I've been thinking, Lance -- only you do it much more coherently. It's a sad day for the nation when the best progressives can hope for in a Supreme Court nominee is a one-dimensional "brilliant hack", instead of a raving theofascist. John Adams would puke at this cardboard cutout's attempt to claim his mantel... he wouldn't be surprised, because ol' John always expected the worst of his fellow men, but he'd still puke. *Sigh.*

[Bill Altreuter]

I don't think you are being entirely fair here. It is true, to an extent, that you can pick your side when you practice law, but the sides are quite a bit less black and white than you might think. Sometimes the skell didn't commit the particular crime he is accused of (when A. was a prosecutor the line was, "You'll get him next time"). Sometimes the cop is well intentioned, but wrong.

Once you get into the appellate realm it becomes even more rarified. One of the most brilliant lawyers I know is an appellate lawyer in a prosecutor's office-- he cares about the outcome in particular cases, but mostly he cares about crafting arguments that don't expand the prosecution's advantage-- he cares about, you should excuse the expression, "keeping it fair."

I have not had a chance, yet, to really explore Robert's writing. He has, however, been pretty visible as an advocate, and the transcripts I've seen of the way he handles himself at oral argument certainly look like he's All That. A mistake people who are not law trained often make is to confuse legal argument with logical argument (or what they think is logic-- another topic for another day). Law works by analogy, to an extent, but it is defined by principles that have developed over time, or been defined by legislation or precedent. What impresses me when I read Roberts' arguments is the artful way he is able to move through the broken field, and make it look easy.

[Lance]

SAP, Thank you kindly.

Mark, I'll have to read that Times piece.

Bill, this is what I'm asking. It's not that I doubt Roberts is a smart lawyer. It's that I haven't seen any specific examples of his smart lawyering. I look forward to reading any you can dig up.

I also don't think Roberts is a hack. But I have some questions for you I think I'll deal with in a full post.

[Mad Kane]

Good post, although I'd amend this quote:
"You can choose clients and cases that, if you will, represent your ideology."

If I were re-writing it, it would read: "Some lawyers are in a position to choose clients and cases that, if you will, represent your ideology."

I worked as a lawyer for over a dozen years, and my choices tended to be handle the case I was told to handle or face unemployment.

In fact, I recall an instance when I did refuse to defend a corporation whose employee was accused of sexual harassment because I was virtually certain the accusations were true (based upon my own observations of the accused.) Shortly after that I lost a job I'd had more than four years. Coincidence? I think not.

Now of course lawyers with fancy pedigrees like Roberts are in a far better position than I was to be picky about their cases. Nonetheless, most lawyers don't have nearly the control over their careers that people think they have.

Also, I note your reference to Rumpole. Many years ago I had the privilege of interviewing John Mortimer and profiling him for British Heritage Magazine. You might enjoy the profile, which I've posted at my site:
http://madkane.com/mortimer.html

[JR]

"Is Roberts the intellectual equivalent of a star college athlete who never lived up to his promise when he made the pros?"

Before he went on the bench, Roberts was the head of the appellate litigation department at Hogan & Hartson, a 1000-lawyer firm with offices in 20 cities around the world. He argued 39 cases to the US Supreme Court -- winning 25 -- and hundreds of cases in appellate courts, and supervised hundreds more.

That, my friend, is not just a pro. That is a star.

[Lance]

JR,

You're right, of course. Roberts was a star. Which is why I asked the question. Either I haven't been reading the right articles or the particulars of his career have been pretty widely ignored or downplayed. Either way, my whole post was something of a question. I want the particulars and, as I wrote, with all the cases he's argued in such important venues, as you've pointed out, it should be easy for the media or his supporters to give plenty of particulars.