For the public good.

[pat]

In a response to a post in someone else's journal*, shannonwest said "Just because Roberts did pro bono work for gay rights that doesn't mean he supports the cause. Don't be fooled by it. I mean, lawyers have to do a certain amount of pro bono work, yes? And do they always get to pick their cases? I don't think so. Anyway, I've known lawyers to do pro bono work on cases where they thought it might help get them publicity, regardless of whether or not they had any interest whatsoever in the outcome of the case (aside from their own win, of course)."

I have seen this sort of sentiment a few other places in left-leaning blogs, sort of an "OMG! He can't have actually done something we approve of?" reaction. (There is another, uglier, reaction wondering if Roberts took on the case because he is in the closet. Because, if you look at it that way, the only reason anyone would support gay rights is if they in fact are gay.)

So let's talk about what all this means. And let's contrast it against those elusive memoranda prepared while he was deputy solicitor general.

About those memos -- there is a question of whether, as the White House and most past SGs (even Archibald Cox) argue, the memos are privileged. I think there is a bigger question of whether or not they are probative of anything.

John Roberts was a lawyer. He was the lawyer for the government. [Edit: Yes, he was a political appointee. Yes he was more than just a line lawyer. However I still hold that, as deputy SG, he was not in charge of setting Administration policy. To argue that he was, that he in fact created the first Bush Administrations policies on abortion -- which is the only case in which those memos mean anything -- stretches credulity.] He didn't make the policy decisions, he just evaluated legal tactics. That was his job. To say that the memos demonstrate his beliefs on anything would be akin to claiming that, based on some work I did in the early 1990s, I approve of having the East Bay foothills covered over with housing developments.

Being a lawyer carries with it a certain amount of moral ambiguity. You don't get to put your moral stamp on the client.** If what they are doing is a bad idea legally, you tell them so. Otherwise, you generally try to do what they want you to. (In really egregious cases, one can usually find a way to tell them it's not a good idea for practical reasons: not, this is an immoral thing to do, but gee, wouldn't this look bad if it ended up in the papers.) If you can't deal with that, you quit -- either by resigning your job or talking your client into getting another attorney. (Or leaving the profession entirely -- there are reasons I don't practice anymore, and to some extent this is one of them. Which doesn't make me morally superior to anyone who is practicing -- just less tough.) You might argue that anyone who worked for a Republican Administration is morally suspect, but I think that's excessive. People take positions, political or otherwise, for all sorts of reasons, and being deputy SG is a damn good job.

But pro bono work is something different.

Only four states require any sort of pro bono work as a condition of practice. (Several other states have voluntary pro bono reporting, with predictably low results.) And among those states, there is tremendous latitude about how to fulfill that requirement. (In Florida, an attorney can pay $350 to a legal aid organization.) Roberts did not practice in a mandatory pro bono state, so there was no legal requirement for him to do anything.

Many, if not most firms, have their own in-house pro bono policies. Hogan & Hartson, Robert's firm, has a particularly strong pro bono department. But what does that mean? Roberts was a partner. He could say no to any given pro bono work presented to him. I have seen people arguing that he probably did it as a favor to colleagues, or for the legal challenge, but I think that's speculation. It boils down to, as a partner, he could have said no. Which, had he found the work distasteful, he would have.

So yes, the fact that he worked on a major gay rights case means something. (At the very least, it means he is not a foaming at the mouth homophobe.) Just as yes, it means something that Ken Starr managed to get SCOTUS to issue a (by the accounts I've read unanimous, which is remarkable) stay of execution for a Virginia inmate.

I think there are still reasons to be concerned about the Roberts nomination -- his joining Randolphs on the decision in Hamdan v. Rumsfeld scares the willies out of me. And some of his opinions on Article III standing have me worried as well. But we should be talking about those -- not spending time trying to find a way to not give Roberts credit for something good.

It annoys me no end when people on the left go out of their way to discredit facts that they find politically inconvenient -- more so than when people on the right do it, simply because I expect better behavior from my fellow travelers.


* I am not linking to the original discussion because, to the extent things get snarky, I would rather they do so here rather than in the OPs journal.

**Criminal prosecutors are a special case: they are, in theory anyway, expected to exercise discretion in what prosecutions they pursue.

Comments

[aquaeri.livejournal.com]

Thanks for a clearly-reasoned, intelligent post.

[kightp.livejournal.com]

Everything I've read about Roberts that isn't outright political crap suggests that he has a sterling reputation for brilliance and respect for precedence among his colleagues both right and left. The pro bono work record encourages me, not because it suggests he's "on our side" but because it suggests he can set aside his personal opinions when it comes to matters of the law. Which is what I'd hope for any Supreme Court justice.

To be honest, I think the Dems are close to shooting themselves in the foot over this one. If I ruled the world, they'd give him a thorough but fair (and fairly swift) hearing and - assuming no record of misconduct or outright judicial bias turns up - confirm him.

They need to save the heavy ammo for whoever Bush appoints to replace Rehnquist, whose fragile health suggests he could die in office at just about any time. Because, frankly, I think they're playing into Bush's hand. I think he deliberately chose a "low-risk" candidate for this vacancy with the expectation that he'll be filling another, and when that one rolls around he'll be able to say, "Look, I tried to choose someone acceptable to all sides and the Democrats savaged him, so why shouldn't I appoint (insert rabid right-wing ideologue here) this time?"

[patgreene.livejournal.com]

I have issues with Roberts -- as I said, his joining in the decision that the Geneva conventions do not apply to anybody including American citizens held at Gitmo because the President has declared them outside the scope of the Geneva conventions is upsetting.

However, nitpicking over whether or not he really meant anything when he helped out on the Romer case distracts us and makes us look very silly. (As does, I might add, the obsession with what his wife does. I find it ironic that the party that got upset when people tried to attach Hilary Clinton's views to Bill are doing the same thing here.) What we need to do is say, "How very nice -- what about his decisions on the bench regarding prisoners at Guantanamo Bay, or some of the things about restricting standing in environmental cases?" He may not have much of a paper trail, but he does have *some*, unlike Clarence Thomas.

But you're right, the President could have nominated a much worse candidate.

[the-siobhan.livejournal.com]

Thank you for the explanation. As a non-American, I found it very educational.

[patgreene.livejournal.com]

I'm glad you found it informative. Just out of curiosity, how did you find the post? Not that I'm complaining, mind you : ) I always like when people read things I have written.

[the-siobhan.livejournal.com]

I followed you over here from your comments in the original post. I hope you don't mind.