Politics with Ron Elving: Roberts' Gay Rights Work

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Madeleine Brand talks with NPR Senior Washington Editor Ron Elving about John Roberts and the Supreme Court nominee's past involvement in gay rights and civil rights court cases. Some conservatives are concerned about Roberts' pro bono work with these groups, and the disclosures are drawing attention ahead of his confirmation hearings.

MADELEINE BRAND, host:

When Congress returns in September, the focus will be on the confirmation hearings for John Roberts. He's President Bush's choice to be the next Supreme Court justice. In the meantime, researchers for the Senate Judiciary Committee and for partisan groups on both sides are working hard to find out just who John Roberts is and how he might decide cases once on the court. Joining us to discuss the Roberts nomination is NPR senior Washington editor Ron Elving.

And, Ron, as far as we know now, what will senators look at first?

RON ELVING reporting:

We're in the discovery phase now, Madeleine. We're looking for more paper and more paper and more paper, and as many documents as the Senate Democrats have already demanded and received, they would like to get the documents from the period of time when John Roberts was the deputy solicitor general in the Justice Department under the first President Bush. And if they look at those, they're going to look at all the questions that interest them most about privacy and about the death penalty and about all the other kinds of cases that might come before the Supreme Court.

BRAND: But there are a lot of interesting cases and issues he's worked on in the private sector and as a judge. Will the Democrats talk about these?

ELVING: They will, and I think they'll try to focus on some of those things that I talked about. Just the last couple of days they've been talking about the death penalty for the first time. And while he has in his commentaries over the years been critical of having the Supreme Court spend too much time on appeals cases on the death penalty, John Roberts has also done some pro bono legal work for a murder defendant. So that might be an interesting area for them to discuss when they get to the hearings.

BRAND: And in one case that's gotten a lot of attention--was a case he worked on in the mid-'90s as a private attorney, where he helped with the gay rights appeal.

ELVING: Yes. And this was a rather important gay rights appeal. In the 1996 ruling, Romer vs. Evans, the Supreme Court stuck down a Colorado law that essentially said gays couldn't sue for discrimination in jobs and housing and other things. And the work that he did was not major work. He didn't sign a brief. He didn't argue the case before a court, but he did help some colleagues in his private firm do some very critical work on that case which was important to it's being won. So that's one that I think is going to prompt some questions from some of the more conservative senators and certainly has prompted some questions from social conservative groups that want to know how he feels about that issue. They were very unhappy about that decision back in 1996.

BRAND: Well, is it likely that that'll hurt him during the confirmation hearings?

ELVING: It has not cost him any support among senators thus far. We haven't heard any Republican senators say he's bothered by it, and the social conservatives seem to think that they're ready to reserve judgment on it at least for now. But it might actually in a sense make some of the Democratic senators like him better, suggesting that he might have the kind of legal turn of mind that in the long run on the court might make him the kind of justice they would like to see. So it could actually mean that he'll have more support on the left, but there will be questions from those who feel that maybe this entitles them to another selection on the right on social issues when the president gets another selection to make later on.

BRAND: So they're already looking to another opening.

ELVING: That's right. They're a little bit afraid the president wants to appoint his attorney general and longtime friend Alberto Gonzales, whom some of the social conservatives suspect might be a potential moderate on the court. So they would rather get somebody else who is more to the right than John Roberts.

BRAND: NPR senior Washington editor Ron Elving. Thanks, Ron.

ELVING: Thank you, Madeleine.

BRAND: And Ron's political column Watching Washington runs every Monday exclusively on our Web site, npr.org.

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