Re: Judge Roberts Had Three Choices. He Made The Sole Unethical One

August 30, 2005

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Re: Judge Roberts Had Three Choices. He Made The Sole Unethical One.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

A dispute is currently in progress over the fact that Judge Roberts participated in interviews for the Supreme Court nomination while the Hamdan case was pending. On one side have been three law professors who say this was improper, and Roberts should have "recused" himself from the Hamdan case, i.e., should have taken himself off the case. On the other side are two law professors who deny this; one of these two, though he did not disclose this as far as I know, apparently is a former consultant to the government about the very military commissions whose legality was at stake in Hamdan.

Roberts has disclosed in a questionnaire that he was interviewed on April 1st by Attorney General Gonzalez, apparently about a future Supreme Court vacancy and nomination, since there was no publicly announced vacancy at that time. (It was widely thought at that time, however, that Rehnquist might retire.) Six days later, on April 7th, the oral argument was held in Hamdan. About a month after that, on May 3rd, Roberts was interviewed by a group including Vice President Cheney, Karl Rove, Cheney’s Chief of staff Scooter Libby, Attorney General Gonzalez, White House Chief of Staff Andy Card, and White House Counsel Harriet Miers. Then, on May 23rd, he was interviewed by White House Counsel Miers. On July 8th, a week after O’Connor announced her resignation, Roberts had a telephone interview with White House Counsel Miers and her Deputy Counsel, William Kelley. He then had several phone conversations with Kelley between July 8th and July 19th. Roberts was interviewed by George Bush on July 15th, the day that Roberts’ court issued its opinion in the Hamdan case. Roberts was then nominated on July 19th.

The interviews were with the top policymakers in the Bush Administration. The earlier interviews were, apparently, for the purpose of establishing or paring down a short list before an announcement of a vacancy (expected to be Rehnquist?), because O’Connor did not announce her retirement until July 1st. (However, did the White House know or suspect months before that her resignation might be or was coming? Had it been notified in advance of the possibility or certainty?) The later interviews were for the purpose of deciding who would replace O’Connor.

After meeting with Bush’s top advisers both before and after O’Connor’s resignation, Roberts made the short list, or, if he already was on it, he survived any paring. Then, on July 15th, he interviewed with the President and, on that same day, his court released its opinion. That opinion upheld policies critical to Bush in two vital particulars. It unanimously ruled military tribunals lawful, and it said the Geneva conventions are inapplicable. The Geneva point was 2 to 1, with Roberts being one of the two judges in the majority. Four days later Roberts was nominated for the Supreme Court.

Those are the facts of what occurred, insofar as I can learn them at this time.

The arguments conducted by the law professors on each side largely revolve around legalistic concepts such as "appearance of bias," around lawyers’ typical "parade of horribles," and around the claimed effect of various prior precedents. Extensively, the arguments are a lot of legalistic crapola, although it must be admitted that one of Roberts’ defenders -- the former DOD consultant -- has more legalistic crapola than the others. It all makes me sick (an odd sentiment, perhaps, for the dean of a law school). (In the accompanying footnote, I have given one example of why it all sickens me, an example in which Roberts’ defenders try to distinguish away an opinion by America’s leading conservative judge, Richard Posner.*) It all makes me ill because to me, as so often to my hero Harry Brohnz (the main protagonist of Misfits In America), the whole matter is quintessentially simple. One needs no legalistic crapola.

What we have here is a situation in which a judge repeatedly met with top federal officials whose policies, over much objection, had long been that there would be military tribunals and Geneva did not apply. These officials were desperate to have those policies upheld (and the lower court’s decision against them reversed). Had Roberts ruled against them, or in any way, however oblique, indicated disagreement with them, he could have kissed any Supreme Court nomination goodby. He knew this -- he is the opposite of stupid. And he kept meeting with the officials, seeking the nomination. In these circumstances, what do you think the chances were that Roberts might rule against military tribunals or for the applicability of Geneva? Less than zero I would say.

Maybe someone will say he would have ruled as he did regardless, since that is what he feels. Of course, we’ll never know. But we can confidently figure that there was zero chance, no matter what he felt, that he would vote against the policies crucial to and so ardently desired by the people from whom he was seeking the nomination. Otherwise, as said, he could kiss the Supreme Court goodby.

Roberts had two ethical choices: he could have recused himself from the case if he wanted to remain in the running as a potential Supreme Court nominee, or, as unreal as one might think it, he could have taken himself out of contention as a nominee if, for some unknown reason, he desperately wanted to remain on the case. Either course would have been proper. Instead, Roberts chose the third, and sole unethical, course. He remained on the case and voted for the people who desperately wanted their policies upheld -- and who would have nixed his candidacy in a New York minute had he decided in favor of Hamdan.

There are some of us -- and I think that, after the Supreme Court acted reprehensibly by "electing" Bush in 2000, our numbers increased and then continued to increase -- who think that lots of federal judges are a bunch of biased, unethical and even immoral characters who kowtow to power while screwing over the little guy. Judge Roberts’ reprehensible conduct will do nothing to diminish our numbers or views. To the contrary.

It is a shame, moreover, that from everything this writer is told, hears and reads, Roberts really does seem to be as nice a guy as you could want on the Supreme Court. But nice does not mean ethical, just as, in reverse, and as often true of liberals, ethical (when it exists) does not mean nice.**

*There is a 1985 case in which a federal trial court judge who had reached retirement age decided to explore the possibility of being hired by Chicago law firms. A "headhunter" he employed contacted, apparently by mistake, two firms that were opponents in an antitrust case before the judge. Neither firm wanted to hire him. Though both had rejected his candidacy, Posner’s opinion said the judge had to be disqualified. Posner said, among other things that:

The appearance of equal justice requires that the judge not be exploring the prospects of employment with one lawyer or all lawyers appearing in a case before him. The dignity and independence of the judiciary are diminished when the judge comes before the lawyers in the case in the role of a suppliant for employment. The public cannot be confident that a case tried under such conditions will be decided in accordance with the highest traditions of the judiciary.
* * * * *
A fully informed and objective observer might wonder whether the judge could decide the case with the requisite aloofness and disinterest when he had just solicited (if unintentionally) employment by the law firms in the case. This conclusion requires recusal.

Roberts’ "non DOD" defender tried -- sickeningly -- to evade this by the specious claim that a judge’s "promotion within the federal system" is not like exploring outside jobs. The "non DOD" defender simply ignored that appointment to the Supreme Court is, to a lawyer of Roberts’ type, the most devoutly wished job possibility there is. It is worth far more to a lawyer of Roberts’ background than any private job is. (Indeed Roberts gave up a million dollar a year private job just to sit on the Court of Appeals.)

The "DOD defender" pretended that the cases are different because -- get this -- the Chicago judge was negotiating salary with private firms, whereas one doesn’t negotiate a Supreme Court salary. The argument is shameless. Once again, appointment to the Supreme Court means far more to someone like Roberts than any amount of salary.

The two defenders’ further legalistic efforts to support the view that what Posner said should be regarded as irrelevant are equally bushwa, and will not detain me here.

**This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.


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