Roberts May Be Sidelined in Some Cases

Published September 12, 2005

| Associated Press

John Roberts is an appeals court judge with a multimillion-dollar portfolio, a spouse who is a successful lawyer and a broad roster of clients from his days in private practice.

Those all mean he probably will have to disqualify himself from dozens of Supreme Court (search) cases should he become chief justice. It is an situation that, while not unusual, would leave the nine-member court with a potential for tie votes.

Roberts, whose confirmation hearings are to begin Monday, can minimize his problems. For example, he could put his money in mutual funds or other types of investments. But ethics experts say his early years on the Supreme Court will require diligence to avoid conflicts.

Potential personal conflicts, along with questions about his appellate opinions and correspondence as a lawyer during two Republican administrations, are expected to dominate the hearings by the Senate Judiciary Committee (search).

The Supreme Court begins its new term Oct. 3 with a full lineup of cases on issues such as abortion and physician assisted suicide, as well as matters that affect a company's bottom line.

By law, judges must not participate in cases brought by companies in which judges or family members own stock — even one share. Justices police themselves when it comes to ethical conflicts and cannot be overruled.

"The justice is a law into himself or herself on that issue," said Stephen Gillers, a professor at New York University's School of Law.

Young law school graduates who clerk for justices comb through the thousands of appeals filed each year to find possible conflicts. Justices do not have to explain why they are sitting out a case.

The most frequent cause of conflicts is money.

"Most of the justices try to make their finances a nonissue by not holding significant stocks directly. But there are no rules, and it's ultimately a matter of personal choice," said Washington lawyer Thomas Goldstein who regularly argues cases at the high court and tracks voting trends.

Disqualifications are not uncommon, especially among the wealthier justices who have extensive stocks. Six of the current eight justices are millionaires.

In the past year, there were 112 recusals — when justices take themselves out of a case — in opinions and orders. The court deals with more than 8,000 appeals a year. By Goldstein's count, Justice Stephen Breyer stepped aside 60 times and Justice Sandra Day O'Connor (search) 27.

O'Connor has done so about 730 times during her 24 years on the court, Goldstein said.

Roberts' investment portfolio includes stock Coca-Cola (search), Disney and telecommunications and prescription drug companies.

Papers Roberts submitted to the Senate over the summer put his wealth at more than $5 million — well above that of his mentor, William H. Rehnquist (search), who became chief justice in 1986 and died last weekend, and Rehnquist's predecessor, Warren Burger.

Burger was named chief justice in 1969 after ethics questions doomed Abe Fortas' nomination for the job.

Fortas, an associate justice, was filibustered in the Senate in 1968 part because he had received $15,000 for teaching college seminars. Fortas resigned the next year after it was revealed that he also accepted money from a private foundation.

Roberts, a Harvard Law School graduate with a squeaky clean image, is expected to be cautious.

"I don't think there will be any sloppiness. We're not talking Abe Fortas here," said A. E. Dick Howard of the University of Virginia, an expert on the high court. "I don't think he'll try to dance around the recusal problem. He may find ways not to overdo it."

If a chief justice stays out of a case, the next senior justice presides at oral argument and oversees the voting.

Judges also are required by law to withdraw when their impartiality might reasonably be questioned.

Last year, Justice Antonin Scalia (search) refused to step aside in a case filed by Vice President Dick Cheney, a friend. Cheney and Scalia had taken a hunting vacation together shortly after the court agreed to consider whether the Bush administration had to release information about private meetings of Cheney's energy task force.

Roberts has told the Senate he would stay out of some cases involving his former law firm and clients, abiding by guidelines from the federal court's policymaking board. He could face conflict issues related to his wife's financial interest as a partner at a prominent Washington law firm.

Roberts was a top Supreme Court lawyer earning more than $1 million a year when Bush named him in 2003 to the federal appeals court based in Washington.

Roberts took himself out of a major case now at the Supreme Court: the administration's attempt to seek $280 billion in profits from tobacco companies. Roberts did not give a reason, but his former law firm has taken positions adverse to the tobacco industry on behalf of health care clients.

Roberts has come under criticism from Gillers and other legal ethicists for ruling on a case involving the administration while he was meeting with White House officials who were preparing for a vacancy on the high court.

Roberts was among the judges who said the Pentagon could hold military commissions, or tribunals, for a foreign terrorism suspect at Guantanamo Bay, Cuba.

The Supreme Court will decide this fall whether to review that case, which would be an important test of the president's wartime powers.

Roberts would immediately take himself out of the case and others he voted on as an appeals court judge. Although not required, it is considered unseemly for judges to attempt to judge their own opinions.

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