- The Washington Times - Friday, August 5, 2005

Conservatives reacted cautiously to the news this week that federal Judge John G. Roberts Jr. helped a group of homosexual rights activists win a seminal victory 10 years ago before the Supreme Court.

“Judge Roberts was an attorney with a large firm where helping colleagues when called upon was expected,” Family Research Council President Tony Perkins said yesterday after researching the matter. “I have verified that his involvement was limited to about five hours of participation in a moot court as he played the role of one of the high court’s conservative members asking tough hypothetical questions of the attorneys who actually prepared and argued the case.”

Mr. Perkins said his initial reaction to the news was concern that Judge Roberts had been “aiding and abetting” the groups. But after discussions with the White House and surrogates, Mr. Perkins urged caution in reaching that conclusion.

Earlier this week, the Los Angeles Times reported that Judge Roberts had performed pro bono legal work to help a homosexual rights group win one of the most significant Supreme Court cases on homosexuality. The 1996 decision in Romer v. Evans ruled unconstitutional a voter-approved constitutional amendment that barred municipalities from granting homosexuals a protected class under civil rights laws.

But White House supporters said yesterday the hysteria over Judge Roberts’ involvement in the homosexual rights case has been fostered by liberals hoping to split the right’s support for the nominee among conservatives. “The goal of the left here was to try driving a wedge between conservatives and a nominee,” said Leonard A. Leo, a conservative lawyer working with the White House to confirm Judge Roberts. “They have failed.”

Also yesterday, the Justice Department officially rejected the request by Senate Democrats for Judge Roberts’ papers from his time as deputy solicitor general under the first President Bush. While expected, the decision angered Democrats.

“The president has cited his work there as one of his reasons for selecting Judge Roberts,” said Sen. Patrick J. Leahy, Vermont Democrat and the ranking minority member of the Judiciary Committee. “The Senate and the public have the right to know what the administration knows about his record.”

The White House cited attorney-client privilege for withholding the documents, and Democrats pointed to cases in the past — including the failed nomination of federal Judge Robert H. Bork to the high court — when similar papers were handed over.

“This is clearly the opening salvo in what will be a long negotiation,” Sen. Edward M. Kennedy, Massachusetts Democrat, said about the letter signed by Assistant Attorney General William E. Moschella. “The fact that the letter is from a third-level official in the Justice Department gives me some hope that the attorney general is reserving his options, as all attorneys general before him have done.

As for Judge Roberts’ pro bono work, conservatives, whose reactions have ranged from indifference to curiosity, cast doubt on the motives of the primary source of the story, Walter A. Smith. Mr. Smith, now the executive director of the D.C. Appleseed Center, had been in charge of pro bono work at Hogan & Hartson while Judge Roberts was one of the nation’s premier Supreme Court litigants at the firm.

In the past, Mr. Smith and his organization have teamed up with the liberal groups People for the American Way (PFAW) and the Leadership Conference on Civil Rights (LCCR) — two of the leading opponents of Mr. Bush’s judicial nominees — in an effort to expand voting rights for D.C. residents. But Mr. Smith dismissed any such suggestion yesterday. “This is somehow a plot to hurt John?” he asked incredulously. “How does this hurt him?”

Mr. Smith said the revelations should “strengthen” his nomination. “It reflects an open-mindedness, a fair-minded manner in John Roberts,” he said, adding that he has not had any contact with PFAW or LCCR on the matter. “All I did was tell the truth when a reporter called about John’s pro bono work.”

While Judge Roberts did not write briefs or become deeply involved in preparing the case, he did review files and help prepare oral arguments for Lambda Legal without charge. He also played the role of conservative Justice Antonin Scalia in the mock trial.

“The fact that Judge Roberts spent less than five hours playing Justice Scalia in a moot court doesn’t cause a lot of people to lose sleep,” said Mr. Leo, who is on leave from his post as executive vice president of the Federalist Society, one of the most influential legal organizations among conservatives. “If this is the best they can come up with, then we all should not have canceled our vacations this month.”

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