Judge Roberts Nomination
(Remarks at the Greater Washington Urban League
Thursday Network Meeting August 25, 2005)

It is truly an honor to be here this evening in the company of some of my personal heroes. Attorney Kim Keenan, former President of the NBA, the bar to which I also serve as a member and Chair of the Small Business Law Section. It is great to see you. I am here on the invitation of Tamara Holmes and Larry Meadows of the National Urban League and Don Scoggins, of the Frederick Douglass Republican Forum. Thank you both for inviting me to contribute my views on President Bush’s nomination of Judge Roberts and my insights on how this nomination may affect entrepreneurs and small businesses.

My official capacity is President and General Counsel of the National Institute for Urban Entrepreneurship, a 501(c) 3 nonpartisan corporation. Since my legal background consists of the representation of entrepreneurs and businesses for over two decades and there’s over 60,000 pages of writings of Judge Roberts for us all to talk about, my observations in seven minutes or less will be a minor miracle, but I will try to be as brief as I can and speak quickly. The views I express today are my own and not of any organization that I may represent or serve in any capacity.

President Bush announced his choice of Judge John Roberts for a seat on the U.S. Supreme Court to replace a vacancy of retiring Honorable Justice Sandra Day O’Connor, a justice that I hold in very high esteem. I was pleased to read that Justice O’Connor highly endorsed Judge Robert and I take that endorsement seriously and to heart, because like Sandra Day O’Connor I consider my own views conservative and sometimes squishy moderate. Roberts has also been endorsed as highly qualified by the American Bar and endorsed by the U.S. Chamber of Commerce, which says in quote “Judge Roberts is highly regarded and well respected by the legal and business community.”

To follow in the shadow of Justice O’Connor is not and will not be an easy task for Judge Roberts. It’s a little like Frederick the Entertainer following First Lady Laura Bush at the annual White House Correspondents' Association debut in May. No matter how good he is, he will be compared to the First Lady and in this case Justice O’Connor. I commend anyone who wants to take on this important judicial role and who undergoes the grueling process to get there.

I do not know Judge Roberts personally, nor have I practiced with or been before him in court, so my only information is through published materials, such as news reports, editorials, published opinions, Blogs (I choose not to spend too much time doing that) and gauging reactions from members of the public.

If you were to ask me, Patricia what’s your take? My honest opinion is that I am optimistic about Judge Roberts’ nomination and am eager to hear more from the Senate Judiciary Committee as it engages Judge Roberts’ (for the American public) on the nominee’s credentials, qualifications, judicial philosophy, personal viewpoints and attributes. The reasons that I am optimistic about this nominee are based on what has been disclosed about his background, his qualifications, and the endorsements he has received.

First, his background is exceptional. Judge Roberts graduated Summa Cum Laude from Harvard University in only three years. After graduating from Harvard Law School with high honors and serving as an editor of the Harvard Law Review, he clerked for Judge Henry Friendly on the Second Circuit and later for Justice William Rehnquist at the Supreme Court. Harvard University and the law school rank # 1 according to U.S. News and World Report. But not only did he attend a prestigious university, he graduated at the top of the class and I believe that speaks volumes about his work ethic and his determination. We also know that he has had a stellar legal career, arguing numerous cases before the Supreme Court, as well as distinguished service within government and the private sector.

Second, I can relate to the many similarities in Judge Robert’s upbringing to my own. He was raised in the Midwest as was I. His father worked at Bethlehem Steel in Indiana as did my father early in his career. We both attended Catholic elementary and high schools; went to Ivy league college and law school and currently, reside with our spouses and two children and practices our faith in Montgomery County, Maryland.

We part company in that he does his own grass, I don’t! I bring that up because this is detail that I don’t think any of us should care about, but it is out there in print. Every detail isn’t important and I’ve tried to remember, but frankly I have NEVER seen him at a National Bar, American Bar Association or Federalist Society Black Tie dinner or event. But then again, what conscientious judge with a career trajectory of the Supremes has much time to socialize?

Third, with respect to his professional opinions and remarks, there are over 60,000 pages of documents have been released from August 16th to date from late 1982 to mid-1980’s from his files. There are another 2,100 documents that we should probably see to, but from what has been released, it should be no surprise that as NPR has reported Justice “Roberts firmly defended the Reagan administration's conservative policies as a White House lawyer.” This observation has been corroborated by conservative Ed Whelan, the president of the Ethics and Public Policy Center. Quote, “John Roberts was a forceful proponent of Reagan administration policies on abortion, school prayer, criminal justice and other hotly contested issues," adding that "Those who try to paint Judge Roberts as a squishy moderate will not find any supporting evidence in these documents." Liberals too have noted his conservatism. The only difference is that conservatives are happy about this advocacy; moderates want peace; and liberals just see red stars.

I would venture to say that from what I have read thus far, Judge Roberts appears to have been a politically conservative advocate, or maybe he was just an advocate for conservative politicians during his legal career; and as a judge, he has exercised judicial restraint, properly so, over deliberations covering both social and business cases and controversies. I say properly so, because considering the facts of the limited published cases I have reviewed and applying the law, I would have rendered similar opinions to the business law cases. Of course, there are numerous cases and controversies that have not come before him yet, so how do we evaluate whether he will be a great judge for entrepreneurs, small businesses and ordinary Americans?

With respect to entrepreneurs, small business and for all Americans, what we do know is that he has corporate law credentials, and I believe that would be a good thing for the Supreme Court and for business. There are many open questions with respect to business and property rights in this country. The Supreme Court has not answered the question as to whether an entrepreneur has a 14th Amendment right to earn an honest living free from excessive regulation, and just this week the Supreme Court refused to reconsider, what I consider a wrongly decided eminent domain case, Susette Kelo v. New London, CT. Small business property owners and homeowners do not have 5th amendment constitutional protection against eminent domain abuse by government for private redevelopment. So at the moment, entrepreneurs and private property owners don’t have adequate protection under the 5th the 14th nor the 1st, so as an attorney representing entrepreneurs and small businesses, the law could definitely be friendlier.

I am somewhat encouraged by Judge Robert’s dissent in Viajo v. Gayle Norton, where he disagreed with the majority’s choice of allowing regulations in an area that was neither interstate nor commerce. Here is an illustration of a situation where Judge Roberts exercised restraint. There is much room for improvement for protecting the rights of entrepreneurs and small business and John Roberts appears to have the intelligence to right these wrongly decided and hard cases.

What do I want to ask the nominee? : I would like to know what he views as the role of the judiciary? What rights are fundamental and what rights are not fundamental? Will he continue a course of exercising judicial restraint, deferring to the Executive Branch and the Legislature or are there specific circumstances that require that he as a Judge become activist? Although I believe he is a strong adherent to the Constitution and would interpret it for the benefit of all Americans, . I am interested to learn more about the source of his viewpoints on women, people of color and underprivileged and I would be interested to learn whether his viewpoints have changed over the years; and how these changes may impact rulings on a Supreme Court? I am also curious (since there are similarities in our background) whether he was sheltered as a kid, and if so, how much of the real world (outside of the law) he has experienced? Of course he is married with kids and has had a stellar career, so maybe that’s enough said!
Thank you.

Copyright Patricia H. Lee, August 25, 2005

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