“The positions a lawyer presents on behalf of a client should not be ascribed to that lawyer.”
—Chief Justice John Roberts, at his Senate confirmation hearing.
When President George W. Bush nominated John Roberts to be Chief Justice of the United States, liberals brought up several briefs he had written as a lawyer in the Reagan Justice Department, staking out the conservative position on various legal issues. One of them, for example, said that Roe v Wade, the Supreme Court decision legalizing abortion, was “wrongly decided and should be overruled.” Did this mean that Roberts believed Roe was wrongly decided and should be overruled? Oh no, said a conservative legal group called the Committee for Justice. “Roberts, as one of several attorneys on the brief for the government, was simply arguing the position of the United States, his client.”
Other evidence of Roberts’s beliefs, such as briefs he wrote while in private practice as a corporate lawyer, or memos he wrote as a White House staff member (urging the administration to take a more conservative line on issues such as school prayer and employment discrimination) were similarly dismissed as merely advice to his client.
The same argument featured in the confirmation hearing for Associate Justice Samuel Alito. Working in the Justice Department back in 1985 and hoping for a promotion to deputy assistant attorney general, Alito wrote a memo bragging about his efforts to overturn Roe and even said this effort was one “in which I personally believe very strongly.” At his confirmation hearing, now-Justice Alito said this didn’t count because he was just “seeking a job.”
Republican operatives Liz Cheney and Bill Kristol are trying to make a scandal out of the fact that nine members of the Obama Justice Department volunteered their time to represent prisoners at Guantanamo, and leeringly imply that this means they must be terrorist sympathizers. Obviously none of these lawyers has said or written anything to suggest that they shared the views of their clients. Alito and Roberts, by contrast, were advocating and advancing views that (reasonably or not) might have kept them off the Court. But Republicans at that time argued that no lawyer should be tarred with the views of his or her client.