I’m very intrigued by the news about Judge Roberts and Romer v. Evans. My initial cautious admiration had been turning into worriment in the last couple of weeks, with all the news about his cocky Reagan-era views, but this reassures me a bit. It doesn’t mean a whole lot – again, whom you represent or advise as a lawyer doesn’t necessarily say anything about your own views. But I can’t imagine that Antonin Scalia or Clarence Thomas would have volunteered, pro bono, to help out the gays.
On the other hand, the issue in Romer v. Evans was pretty egregious. It involved the following amendment to the Colorado constitution:
“Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.”
In short, the amendment (which passed) legalized all types of discrimination against gays and lesbians – in employment, in housing, in whatever. Opposition to that amendment wouldn’t necessarily translate to sympathy for gay marriage or other gay-rights issues. As Arthur Leonard says in the linked article above, “There is certainly a difference between striking down laws that impose second-class citizenship on a class of people and supporting more affirmative rights for such people, and I don’t think a judge’s position on one necessary predicts his position on the other.” (It could be argued, of course, that same-sex marriage bans impose second-class citizenship on a class of people, but I know what he’s getting at.)
So like everything else that has been uncovered thus far, it doesn’t say much about Roberts other than that he’s not a Scalia or Thomas. Well, it also says he might not be a Rehnquist.
But also, Roberts, at age 50, would be the youngest member of the current Court by seven years. (Thomas is 57.) Scalia will be 70 next year. While age does not predict attitude, someone born in 1955 will have grown up in a different cultural context than someone born in 1936. Judge Roberts was 14 at the time of the Stonewall riots, for instance. Not that that necessarily means anything, but it’s something to keep in mind.
Anyway, this whole thing is intriguing. I guess we’ll see what it means.
I think it’s fascinating. If you read what Dubofsky said about how he prepped her, it’s clear that Roberts not only understands the radical right point of view, as espoused by Scalia, he also clearly sees the flaw in its logic. He knew they’d never convince Scalia, but he coached them on how to answer Scalia’s questions to the satisfaction of the middle. And I suppose I could be wrong, but I think it shows, at a minimum, a sense of fairness toward the gay community. No one would volunteer to aid such a hot-button issue if they had strong feelings in opposition.
This gets more fascinating with each passing day. I can’t find the piece at the moment but in yesterday’s L.A. Times it was pointed pout that while this was pro bono work, Roberts was under no obligation to do it. He could quite easily have passed it along to someone elseat the firm. The fact that he didn’t, and was quite helpful to those involved in the case, suggests he isn’t a fire-breathing ideologue.
But at the same time there’s some backstage manuvering going on with all of this. Roberts never mentioned this case. Surely BushCo wants it coevred up. But you can’t unring a bell. This should make his confirmation hearings REALLY interesting, because it won’t be the Democrats who’ll want to “Bork” him!
Yeah…maybe, just maybe, this cloud has a silver lining. It’s possible we’ll end up getting the moderate of our dreams, if not the liberal, while Bush’s base abandons him for this betrayal. Wishful thinking on my part, perhaps…but you know, these days, I’ll take optimism when I can find it.