More on Roberts

GratisNet: "From:

http://www.law.com/jsp/article.jsp?id=1108389946956

[in part]
NOT ALWAYS PREDICTABLE

So far on the D.C. Circuit, Roberts' votes have mainly fallen on the conservative side, but not always.

Last December, in United States v. Mellen, Roberts ruled in favor of a criminal defendant who challenged his sentence in a fraud case. Judge Karen LeCraft Henderson -- yes, an appointee of the first President Bush -- dissented.

In the July 2004 decision Barbour v. Washington Metropolitan Area Transit Authority (WMATA), Roberts joined Merrick Garland -- a Clinton appointee -- in deciding that sovereign immunity did not bar a D.C employee with bipolar disorder from suing the transit agency under federal laws barring discrimination against the disabled. Conservative Sentelle dissented.

But then there was another WMATA case -- known as the french fry case -- which some critics point to as a sign of a certain hard-heartedness in Roberts' decision making.

In the unanimous ruling last October in Hedgepeth v. WMATA, Roberts upheld the arrest, handcuffing and detention of a 12-year-old girl for eating a single french fry inside a D.C. Metrorail station. 'No one is very happy about the events that led to this litigation,' Roberts acknowledged in the decision, but he ruled that nothing the police did violated the girl's Fourth Amendment or Fifth Amendment rights.

Roberts also displayed what some viewed as insouciance toward arroyo toads in a 2003 case, Rancho Viejo v. Norton. Roberts wanted the full D.C. Circuit to reconsider a panel's decision that upheld a Fish and Wildlife Service regulation protecting the toads under the Endangered Species Act. Roberts said there could be no interstate commerce rationale for protecting the toad, which, he said, 'for reasons of its own lives its entire life in California.'

In another decision last June, Roberts went even further than his colleagues in supporting the Bush administration in a case that pitted the government against veterans of the first Gulf War. American soldiers captured and tortured by the Iraqi government during the first Gulf War sued the Iraqi government in U.S. court and won nearly $1 billion in damages at the district court level.

But once Saddam was toppled in 2003, the Bush administration wanted to protect the new Iraqi government from liability and intervened to block the award. Roberts, alone among the circuit judges who ruled with the government, said the federal courts did not even have jurisdiction to consider the victims' claim. An appeal is before the Supreme Court.

'These decisions are troubling in a lot of ways,' says Elliot Mincberg of the liberal People for the American Way, a point person in any battle over Supreme Court nominees.

But Mincberg's criticism of Roberts may be muted somewhat by the fact that he worked with Roberts at Hogan years back and likes him personally. 'He's a very smart lawyer and easy to work with, but there is no question he is very, very conservative,' says Mincberg.

Another person who might otherwise be a critic of Roberts is a longtime friend. Georgetown University Law Center professor Richard Lazarus, an environmental law advocate, was a classmate of Roberts at Harvard Law School and roomed with him when they first came to Washington 25 years ago.

'John Roberts and I are very good friends, and I think very highly of him as a person, lawyer and judge,' says Lazarus with care. 'After that, I have to bow out.'

Lazarus would not comment further, but other friends say the roots of Roberts' conservatism can be traced to his days as a Harvard undergraduate, toward the end of the Vietnam War. Seeing fellow students demonstrate in sympathy with Ho Chi Minh, one said, did not sit well with Roberts, who grew up in Indiana.

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May I remind everyone that while Roberts is 'very, very conservative' that, in and of itself, is not a disqualification to serving on the SCOTUS. The fact that his intelligence and knowledge of the law is without question, on both sides of the political divide, means that absent some evidence of damaging conduct in his past, and I don't mean his championing conservative causes, I don't see how he does not win confirmation.

Remember, we want judges to reasonably interpret the law using the constitution and yes, common sense and reason, as a reference. We do not want judges to make law (ie: activism) whether they are liberal, conservative or whatever."