Pegging Roberts' Politics

This is a partial transcript of "Special Report With Brit Hume," August 5, 2005, that has been edited for clarity.

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JIM ANGLE, GUEST HOST: The debate over the next Supreme Court justice grinds on, as people try to divine where he stands on the key issues. People across the spectrum point to one case or another as proof positive of what John Roberts believes and how he would rule.

But the evidence is all over the map. And to help us find our way is David Leitch, former deputy White House counsel who worked with Roberts, both at firm of Hogan & Hartson and at the Justice Department in the early 1990s. He joins us from Detroit.

David, thanks for joining us.

DAVID LEITCH, FORMER WHITE HOUSE DEPUTY COUNSEL: Glad to be here.

ANGLE: Let me ask you first, Roberts’ career is filled with interesting work on a broad range of cases. Some people will look at one case or another and say, "That is a clear indication of what he believes." Why shouldn’t that be the case?

LEITCH: Well, throughout John Roberts' career, like most lawyers, he represented clients. And clients brought him cases that were all over the map politically and in terms of the jurisprudence that they presented. And John was engaged in the practice of law and representing clients’ interests.

So it’s a little difficult to tell from cases that one has in private practice what one’s personal beliefs are. In fact, if you look at the cases that Judge Roberts handled in private practice, they would be hard — you would be hard-pressed to draw a conclusion from them, because they were, on various sides of many issues, as his client’s interests demanded.

ANGLE: Now, most of the criticism has been from those who fear that he might be too conservative. But there is some information, some evidence that goes the other way. And there, there’s a lot of talk now about a case from Colorado involving gay discrimination.

What was that case? And what was John Roberts’ role in it?

LEITCH: Well, the case involved a statute that Colorado had passed that some viewed as discriminating against gays, and it was challenged and ultimately struck down by the Supreme Court.

Judge Roberts’ role, when he was in private practice, was a role that he had played hundreds of times in other cases, and that was namely to engage very briefly, in a moot court exercise, to help the advocate who was going to be standing in front of the Supreme Court argue a case...

ANGLE: Now, this was pro bono work, right? This was work he was doing for free just to help out?

LEITCH: Yes. And I think he spent about 6 1/2 hours on this particular case. And in private practice, in a law firm, it’s in the best tradition of the bar; it’s in the best tradition of being a law partner, to assist those who are arguing cases in the Supreme Court, if you’re an expert in that.

And John was asked to do that hundreds of time and he never said no. He always was willing to help. And it also really was a service to the Supreme Court, because it increased the quality of advocacy before the court.

And everyone who has practiced in the court has seen cases that could use that kind of help. And it’s been an important development over the years that attorneys in the practice before the Supreme Court have come to help others.

John assisted the National Association of Attorneys General and other groups who wanted to increase the quality of advocacy in the court. And so this was just part of that kind of effort. I think it’s in the best interests of the bar, and I think he should be commended for having spent so much of his time on these types of efforts.

ANGLE: Now, that gay discrimination case is causing a little bit of angst on the right. Why shouldn’t people have some doubts about his involvement in that case, if this is a big issue for them?

LEITCH: Well, I think, because Judge Roberts made it a practice to help all comers and really to help them in the quality of their advocacy, and it was not a choice that he made in the sense that he was out there crusading for one case or another.

ANGLE: OK.

LEITCH: He was a professional who was trying to assist people in their professional activity in front of the court. And as I said, he did this hundreds of time and I don’t think ever said no to anyone who came and asked them for this kind of brief assistance. He spent about 6 1/2 hours on the case and really ought to be commended for it.

ANGLE: Now, on the other side, abortion rights organizations are pretty sure they know where he stands on abortion, though others say it’s not at all clear. They point to a case dealing with Operation Rescue, which tries to prevent people from going into abortion clinics, on behalf of the first Bush administration that he filed an amicus, or friend of the court brief on that. Let’s hear what one of the groups has to say about that.

(BEGIN VIDEO CLIP)

NANCY KEENAN, NARAL PRESIDENT: He wrote an amicus in Bray that defended Operation Rescue. And we find that of grave concern when you have somebody that didn’t have to file that amicus, but did in defending Operation Rescue, which really are domestic terrorists.

(END VIDEO CLIP)

ANGLE: OK, so the view there is that he sided with domestic terrorists when he didn’t have to. What’s your view of that case?

LEITCH: Well, again, that was a case in which Judge Roberts had a client. His client was the United States. And the position of the United States through the Bush administration was the one that was stated in the brief. He was working on behalf of the Bush administration.

And I think it’s a little much to say he was siding with domestic terrorists. There were significant legal issues in the case that was near the line of First Amendment activity. And it was very important that that be clarified. The Bush administration took a position that John helped articulate, along with other lawyers in the Justice Department.

ANGLE: The question was how you regulate First Amendment rights without infringing on them, I gather?

LEITCH: That’s right. And you may recall that this was quite an unsettled question at the time that Operation Rescue and others were engaged in some activities that seemed to be over the line, but some activities that were closer to the line that judges had prevented them from doing.

And, you know, we all want to protect First Amendment rights without having them become too extreme. And that was a case that helped to define the territory there. And again, Judge Roberts was representing the interests of the client, the United States, and the position of the Bush administration. I’m sure he did so admirably.

ANGLE: OK, David Leitch, thanks so much for joining us. We appreciate it.

LEITCH: Thank you.

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