by Joel Smith & r & Most Americans had never even heard of John G. Roberts before last week, when, on July 19, President Bush ended the guessing game over whom he would pick to fill a vacancy on the Supreme Court by fingering the sable-tongued courtroom heartthrob. The nation responded with a resounding "Who?"
Now John G. Roberts is practically a household name, as the media and the Senate and the House and any number of concerned third parties have sprung into action, dissecting his every speech, motion and predilection in an attempt to discern his political leaning. "Roberts is a justice of law, not politics." "Roberts is a right-wing nut." It seems you could play a spirited game of backyard football with Roberts.
As this process unfurls, one of the cases that may see some attention hits close to home. Arguing before the U.S. Supreme Court in the spring of 2002, Roberts, then in private practice, defended Gonzaga University against a student who was suing the school for releasing confidential personal information.
The case began in 1994. The teacher-education student, Ru Paster (although called "John Doe" throughout the case, his real name was reported by various media at the time), sued the school on a handful of charges, from defamation to negligence to invasion of privacy. He also sued Gonzaga for allegedly violating the Family Education Rights and Privacy Act (which became the basis of the case the Supreme Court judged). Apparently, a Gonzaga resident advisor overheard "Jane Doe" complaining about a sexual encounter with Paster. The R.A. inferred that Jane Doe had been raped, told someone, who told someone else, who told someone else. When word got to an investigator from the Office of the Superintendent of Public Instruction (OSPI), and to the dean of the teacher-education program, the dean said she wouldn't sign the moral character affidavit necessary in Paster's application for teacher credentials.
Enlisting the help of law firm Randall and Danskin, including lawyer Laurel Siddoway (later of River Park Square fame), Paster sued the university for all the above charges and won the case in trial court. (Jane Doe told the court that Paster never raped her; it had all been a misunderstanding.) Then Paster lost the case in appeals court. Then he won it again in the state Supreme Court.
Though Gonzaga ended up doling out more than $1 million to Paster for the other claims, it couldn't let rest his last contention -- that the university violated FERPA, under the Civil Rights Act, by sharing the rape rumors with OSPI. That's when they decided to take the case to the highest court in the nation, and to hire John G. Roberts to represent them. Are you still following all this?
Mike Casey, Gonzaga's legal counsel, says the university's insurance provider, United Educators, based in Bethesda, Md., knew the Washington, D.C., bar association well and selected Hogan and Hartson, one of Washington's largest law firms; the case was then assigned to Roberts.
Siddoway, who left the case before it went to Washington, D.C., recalls that she had heard that Roberts was "extremely impressive ... the premier Supreme Court litigator" and that he had "more experience than anybody who was doing it at the time." She adds, "I also heard that he was a pretty good guy."
Whatever the reasons for it, it's clear that Gonzaga's decision paid off. Flying in the face of the ACLU, Roberts won the case in the Supreme Court, arguing that Congress never intended for FERPA -- which prohibits the funding of institutions that make it a practice to divulge private information -- to be used as a weapon by individual students making individual rights complaints.
Siddoway calls Roberts' position on the case "conservative," saying that it "limited access to the courts to remedy violations of rights," but hesitates to use that to extrapolate about his political character. "He was a lawyer working for a client in this case," she says, noting that the decisions he wrote as a judge are much more telling.
Casey agrees, saying, "A lawyer kind of takes the facts that are brought to him and fashions whatever kind of legal argument he can to support those facts. Most lawyers set their personal beliefs aside and advocate for their client."
Still, that's Spokane's little moment in the Roberts spotlight. It's not terribly sexy and certainly not as incendiary as the attorney's opinions on abortion, but with everyone buzzing about his record, it just might come up. And when it does, you'll feel pretty smug that you beat the politicians to it.
The only person, it seems, not saying much about John G. Roberts these days is Associate Justice Sandra Day O'Connor, whose seat on the bench Roberts is poised to fill, and who spoke at a judicial conference held in Spokane last week. Chatting informally with three other judges from the 9th Circuit Court of Appeals, O'Connor touched on the inherent value of an independent judiciary, what she sees as a deteriorating relationship between America's federal judiciary and the Congress and the respective allures of golf and fishing.
The closest she came to a judgment on the effect Roberts might have on the political leanings of the Supreme Court was this, in response to a question about how the court has changed in the 24 years she's sat on the bench: "When you get a new member of the court, you don't just have a new member -- you have a new court." A new member, she told the gathering, overturns the dynamic working relationship of the whole.
She added that the intense scrutiny over judicial appointments is a relatively new phenomenon, which stems, more than anything else, from the advent of televised proceedings. With a live televised feed giving them "free exposure," she says, senators won't miss the chance to "look erudite" and be seen asking "tough questions."
As the Senate Judiciary Committee starts its rhetorical calisthenics in anticipation of a heated confirmation hearing for John G. Roberts later this summer, it would be wise to remember both of O'Connor's sentiments.