- The Washington Times - Tuesday, August 9, 2005

Supreme Court nominee John G. Roberts Jr. consistently deferred to the legislative and executive branches in his two years on the nation’s second-most powerful federal court.

Judge Roberts was sworn in to the U.S. Circuit Court of Appeals for the District of Columbia in 2003 and has been involved in nearly 200 decisions. Almost all of those were unanimous findings by a three-judge panel. But when the judges split, Judge Roberts sided with the court’s conservatives only slightly more often than with its liberals.

And a review of his 48 written opinions by The Washington Times shows a judge who gives the executive branch wide latitude, as long as officials don’t act capriciously, and one who takes seriously the directions given to judges by Congress.

In one stark instance, he wrote a sharp critique of a district court judge who refused to follow federal sentencing guidelines, chastising him for his “apparent election to sentence according to his own lights.”

Judge Roberts, in an opinion joined by libertarian-leaning Chief Judge Douglas H. Ginsburg and liberal-leaning Harry T. Edwards, wrote that the judge’s sentence had to be overturned “so that we may be certain [the defendant] is sentenced under the guidelines and in accordance with the rule of law we are all duty-bound to uphold.”

During his time on the court, Judge Roberts has been involved in some high-profile decisions.

He was part of the unanimous nine-judge panel that ruled the Bush administration did not have to release internal documents concerning Vice President Dick Cheney’s energy task force.

Judge Roberts also wrote the unanimous decision that held that however bad the policy, Metro had the authority to arrest a 12-year-old girl who was eating french fries on the subway, noting: “It is not our place to second-guess such legislative judgments.”

He also was part of a unanimous three-judge panel that ruled against an attempt to move the case of a detainee accused of being Osama bin Laden’s driver — captured on the battlefield in Afghanistan — from a military tribunal to federal court.

The decision strongly defended the Bush administration’s position that enemy combatants are not entitled to the protections and procedures of the Geneva Conventions.

Court watchers said Judge Roberts has proven to be solidly conservative, but does not seem to have an agenda.

“He’s a conservative. He’s not an extreme ideological conservative,” said Thomas Goldstein, founder of Goldstein & Howe, a District-based law firm that specializes in Supreme Court cases. “He’s what I would call a federal-power conservative. I don’t think he’s a states-rights conservative, and I don’t think he’s an anti-government conservative. And this may reflect his time in the executive branch.”

Mr. Goldstein’s firm runs a Web log, www.sctnomination.com, that reviewed 191 decisions Judge Roberts voted in. Their review found that very few cases were split decisions, and in those that were, Judge Roberts was almost as likely to side with liberals against a conservative colleague as he was to side with conservatives against a liberal colleague.

Although Judge Roberts agreed 100 percent of the time with conservative Senior Judge Laurence H. Silberman and 99 percent of the time with Judge Ginsburg, he also agreed 95 percent of the time with Judge Merrick B. Garland and another liberal-leaning judge, Judith W. Rogers.

That was more than the 90 percent of the time he agreed with senior Judge Stephen F. Williams, a conservative Reagan appointee, and the 92 percent he sided with David B. Sentelle, possibly the court’s most conservative member.

In one of his more noted opinions, a concurrence, Judge Roberts criticized Judge Williams and a liberal-leaning colleague, Judge A. Raymond Randolph, for ruling more broadly than he thought was necessary in a case involving Drug Enforcement Administration sanctions against a company for violating export controls on ephedrine.

“The cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more — counsels us to go no further,” he writes, calling his colleagues’ broader ruling “a gratuitous ride.”

Convicted criminals have received little relief from the panels that have included Judge Roberts.

He overturned a lower court ruling that decided the search of a drug dealer’s trunk was unconstitutional and upheld a conviction appealed on the grounds that a voluntary — and belligerent — confession should not be valid because the woman caught in the District on gun charges was not yet read her rights.

Judge Roberts has, however, acceded to reversals of lower court rulings that imposed sentences that he found precedent to prove were too harsh.

The judge has joined rulings against environmentalists on occasion and also decided that a developer had to yield to the protection of the quino checkerspot butterfly.

Businesses that have crossed the line in trying to suppress union organization have been rebuked, while unions that have tried to change the rules of their collective-bargaining agreements have been stopped in their tracks.

And two racial-discrimination claims, which the evidence showed stood on flimsy ground, were rejected by panels that included Judge Roberts.

Bradford Berenson, who worked in the White House counsel’s office from 2001 to 2003, was among those whose recommended that President Bush put Judge Roberts on the first slate of candidates for appeals court slots.

He said Judge Roberts is “not the kind of judge you can predict based on the identity of the parties” or by the politics of the litigants.

“He wants to find the right answer, and he will go where the law takes him,” Mr. Berenson said. “He’s an ump who calls the balls and strikes as he sees them.”

Mr. Berenson said it is impossible to know how Judge Roberts would approach Supreme Court precedent were he to be confirmed to the high court.

“But everything we know about him thus far suggests he is rather more reluctant to do that than some of the more aggressive conservative judges,” Mr. Berenson said.

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