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Judge Roberts and pro bono – Sincere but misplaced concern from some good people

By Marion Edwyn Harrison
web posted August 8, 2005

John RobertsOn August 4 The Los Angeles Times, seldom veering too far from the leftist agenda, conspicuously published a byline piece perhaps calculated more to inflame family-oriented conservatives than to enlighten public discourse about the John G. Roberts, Jr. Supreme Court nomination. Whatever the motivation - news or in-your-face? - the piece reveals that some years ago Judge Roberts, then a younger partner in the gigantic and long-established Washington, D. C. Hogan & Hartson Law Firm, gave extensive, brilliant and ultimately successful advice on a pro bono basis in what reasonably may be termed pro-homosexual litigation.

Whether outside attorneys or those cognizant of the case within the law firm, those attorneys contemporaneously familiar with Judge Roberts' work chant a solid chorus of commendation for the competence of his input. He was not, suffice it to say, the lead attorney and did not argue the case before the Supreme Court, which resulted in a six - three victory.

There is no indication that Roberts the advocate necessarily shared the goal of the pro bono client. It is well established in law that an attorney need not. How else would an indicted criminal, an offensive spouse or millions of other miscreants and probable miscreants through the centuries of Anglo-Saxon jurisprudence find representation? Remember the vast and pervasive opprobrium and near-violence visited upon 34-year old future President John Adams for his 1770 criminal defense of British soldiers who had fired upon Colonialist civilian demonstrators, Adams having taken the case because no other prominent lawyer would.

One must consider the reality of life in a contemporary American "mega" law firm. In many - probably now most - there is much pro bono representation. (Some of us believe the choice of representations has gotten out of hand, to a liberal's delight: cases furthering leftwing causes, not defenses of the impoverished. But that is beside the point.) In many such firms the younger partner or the associate has no realistic choice when asked - or just hinted at - by an influential partner that the less senior attorney's particular expertise would be appreciated. Because Roberts qua attorney was so accomplished in appellate litigation, and also was helping the firm build an even more significant appellate practice, inevitably he was a fellow in demand and, to the extent he could balance work for paying clients, he responded.

Did he respond to a case with enthusiasm? Of course. Once an attorney commits the attorney revs up, builds enthusiasm, performs his best. That approach not only is the culture of the bar; more important, it is essential to a functioning bar, which, after all, in litigation exists to attempt to win, without which enthusiasm many citizens would lose their rights.

In other professions and trades there often is the participant's dedication or enthusiasm once undertaking a cause. We see it all the time among physicians - the spirited treatment of a dying patient who in a moral sense deserves death. Many years ago I saw it in the stonemason foreman whom I interviewed as a witness in an unrelated government-contracts case. He breamed with enthusiasm about the highest-quality - "we are the best" - masonry he was supervising in building Manhattan's largest hotel and wanted to show me all around "this greatest hotel I am building." Only in an aside did he later comment that he thought there were too many big Manhattan hotels and "who would want to stay in one."

In sum, substantiated pride in performance is a virtue. Enthusiasm often facilities performance. So the good Judge, then a mere lawyer, possibly enthusiastically, provided the highest competence in a Supreme Court case the powers-that-be in his law firm undertook as pro bono. Unlike, for example, promoting abortion, nobody died. The cause was to promote human rights (even though many of us disfavor anti-family applications of the cause).

So, at the least, it is highly doubtful that a Justice John G. Roberts, Jr. would be a threat to the family.

Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.

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