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Roberts is well liked, but his judicial record isn't clear

WASHINGTON—If you're looking for clear ideological markers in the work of John G. Roberts Jr., the kinds of screeds or invectives that might define a judge more as a political actor than a measured jurist, you'll look a long time in vain.

That's because Roberts, President Bush's nominee to become the 109th justice of the Supreme Court, has made an art of avoiding controversy in a town that thrives on it.

What does Roberts think about affirmative action or gay rights? About separation of church and state or the death penalty? Legal insiders in Washington, where Roberts has spent nearly 30 years as a lawyer, government official and judge on a prestigious appeals court, respond unanimously: Who knows?

Even on abortion, perhaps the most divisive issue the Supreme Court confronts, Roberts' record is mixed.

As a young lawyer in the George H.W. Bush administration, Roberts had a hand in taking a position that Roe v. Wade, the 1973 ruling that legalized abortion, was wrongly decided and should be overturned.

But during 2003 confirmation hearings for his appointment to the U.S. Court of Appeals for the District of Columbia Circuit, Roberts was equally unequivocal on the opposite side. He said Roe was settled law.

"He's a very moderate personality, but no one really knows whether his politics and his jurisprudence are also moderate, because he hasn't let that be known," said Thomas Goldstein, a Washington lawyer who argues before the Supreme Court and whose firm, Goldstein & Howe, operates an Internet site that tracks high court activity. "He's definitely not an open ideologue, but what does he believe? I don't know."

H. Christopher Bartolomucci, a partner at Hogan & Hartson, LLP, the Washington law firm where Roberts worked, said the nominee took cases that advocated positions across the political spectrum and had no problem representing all sorts of clients. Roberts once argued on behalf of welfare recipients who were being cut off, saying they were entitled to individual hearings before their benefits were discontinued.

On the D.C. appeals court, which is split between Democratic and Republican appointees, Roberts has written about 40 opinions and has had only two or three other judges dissent from his rulings, Bartolomucci said.

"I think that says something, if he's got Carter and Clinton appointees going along with what he says," Bartolomucci said.

Roberts' enigmatic record may prove a boon in the Senate Judiciary Committee, improving his chances for quick confirmation.

But some interests are already saying his lack of clear positions is troubling, because no one really knows what the country might expect from a Justice John Roberts.

"At first blush, John Roberts may not appear to be an ultra-right judicial activist," said Wade Henderson, the executive director of the Leadership Conference on Civil Rights, the nation's largest coalition of civil rights groups. "While in reality John Roberts may be a hard-nosed extremist with a soft conservative facade. In short, the president may have nominated a stealth candidate, a Justice (Antonin) Scalia or (Clarence) Thomas in (Sandra Day) O'Connor's robes."

In some ways, Roberts has all the credentials that conservatives were seeking in a high court nominee. He clerked for Chief Justice William Rehnquist, worked in the Reagan White House and is a member of the Federalist Society, a prominent group of conservative lawyers.

That background is reflected in opinions Roberts has written on the D.C. circuit that suggest a limited role for the federal government in economic and environmental regulation. He's questioned the reach of Congress to enforce some parts of the Endangered Species Act and the ability of federal courts to interfere in criminal proceedings to uphold civil liberties.

In an opinion that Roberts' opponents often cite, he upheld the arrest and detention of a 12-year-old girl for eating french fries in a Washington subway station. Roberts acknowledged that no one was happy about the circumstances of the arrest, but denied the girl's claims that her arrest violated the Constitution.

But Roberts also has taken positions that are inconsistent with some conservative views, suggesting that he has a more open-minded view of the Constitution than some of his critics say.

He's sided with criminal defendants in some cases, opposing other Republican appointees. And he's taken other inconsistent views, depending heavily on the facts in cases.

That highlights a part of Roberts' approach that separates him somewhat from Justices Scalia and Thomas: Though he has a firm view of the Constitution and its limitations on government, he's intensely interested and contemplative about the facts in each case.

Bartolomucci said a Justice Roberts probably would combine attributes of several current justices.

"I think he'll be a little bit like Rehnquist, a very careful comber of precedent and text, and I think John may have some of O'Connor's ability to look at facts and realities, and be sensitive to the nuances in a case," Bartolomucci said.

"He will definitely bring the pure intellectual power of a Scalia to the court, and that's a good thing."

That's one attribute that no one disputes for Roberts. A Harvard law graduate who was managing editor of the school's law review, he's regarded by lawyers across the spectrum as one of the great legal minds of his generation. He's argued 39 cases before the Supreme Court—a staggering number—and he attracted the support of dozens of other legal scholars when he was nominated to the appeals court.

Henderson of the Leadership Conference on Civil Rights said he respected Roberts' intellect and record of accomplishment but that he remained concerned about what kind of justice he'd be.

"I don't think it's possible to endorse him, given the record we've seen," Henderson said. "But the question is whether we might actively oppose him. We'll have to wait and see."

He said the president missed an opportunity by picking Roberts.

"We're saddened that President Bush has chosen the politics of conflict and division over bipartisan consensus," he said. "Let's be clear: John Roberts is no mainstream judge."

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(c) 2005, Knight Ridder/Tribune Information Services.

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