"I have no platform," said Chief Justice-designate John Roberts to members of the Senate Judiciary Committee when hearings convened Monday on Capitol Hill. "I come before the committee with no agenda."
But what Roberts does bring before the committee is a long list of ties to corporate America from his years of working as a lobbyist and an attorney in Washington on behalf of business and special interest groups. He also gives the Judiciary Committee a golden opportunity to shed light on a thorny but still largely ill-defined issue: how Supreme Court justices should contend with potential conflicts of interest, including whether they should recuse themselves from a case.
Within minutes of the White House announcement of Roberts' nomination in July, U.S. Chamber of Commerce president Thomas J. Donohue praised him as "highly regarded and well-respected by the legal and business communities." On its Web site, the National Association of Manufacturers prominently features a photo of Roberts (along with a new blog on judicial nominations), accompanied by the headline "The Business Case for Supreme Court Chief Justice Nominee John Roberts."
Roberts is the beneficiary of the organization's first-ever lobbying campaign for a Supreme Court nominee. Two members of its executive committee represent corporate interests that Roberts himself represented as an attorney: Toyota and the coal mining industry.
As the Senate deliberates whether Roberts should lead the nation's highest bench for what may be decades to come, the issue of judicial conflict of interest is relevant like never before. With respect to corporate America, Roberts' career and financial-investment profile stand out among sitting judges: His 2005 financial-disclosure form lists 78 stock holdings, which range from high-tech to healthcare, to mass media and corporate real estate. His net worth has been listed at roughly $5.3 million, and his earnings at law firm Hogan & Hartson were more than a million dollars in 2003.
It's difficult to predict what cases will come before the court in the coming years, but Roberts' personal investments in numerous top companies across a variety of industries make him a prime candidate for appearances of impropriety. Companies whose stock he owns in the high-tech and telecom sectors include Dell Computer, Microsoft, Texas Instruments, Intel, Agilent, Cisco, Novellus, Hewlett-Packard, Lucent and Nokia. In healthcare: Pfizer, Merck, Johnson & Johnson, AstraZeneca, Hillenbrand, and Becton, Dickinson. In big media: Time Warner, Disney and Blockbuster. In finance and real estate: Citigroup, State Street and Washington REIT. (Experts will presumably advise Roberts to avoid recusals related to his extensive stock holdings by placing his assets in a blind trust.)
Specifically, Roberts' Pfizer stock presents a potential conflict with an upcoming high-court case for which the drug giant has filed a friend-of-the-court brief. Meanwhile, his work for Chrysler and Toyota could be a conflict in an upcoming case involving the National Automobile Dealers Association, while a mining company has a case on the docket with potentially significant implications for the industry — another for which Roberts worked. Such cases, with industry-wide implications, may explain why the National Association of Manufacturers' head, John Engler, has asserted that Roberts is a jurist who "get[s] it right."
Roberts' mentor, the late Chief Justice William Rehnquist, expressed in 2000 his widely held but stringent take on one facet of the matter: "[A] judge should recuse himself whether he holds one share or a thousand shares of stock in a corporation that is party in a case before his court."
But that may be just the beginning of the issue. Rehnquist's approach, which is based in federal law, lets judges avoid grappling with messier potential conflicts — including, in Roberts' case, those involving business clients that helped him finance his investment portfolio.
Beyond his stock holdings, some of the corporate clients Roberts represented while in private practice at Hogan & Hartson, where he was a partner for 12 of his 13 years, could also present the appearance of impropriety if Roberts were to rule on a high-court case involving them. They include Fox Television, Digital Equipment, Peabody Coal and the National Mining Association, Litton Industries, Rush Prudential HMO, Toyota, Chrysler and NBC. In addition, Roberts lobbied successfully for the peanut industry in 1996 and 1997 to keep huge federal peanut farming subsidies intact; he was a registered lobbyist for the Cosmetic, Toiletry and Fragrance Association; and he represented the cattle industry.
As chief justice Roberts may also run into conflicts of interest with a former colleague from Hogan & Hartson, Gregory G. Garre, who worked with Roberts for years and succeeded him as head of the firm's Supreme Court and appellate practice. Garre has two cases on the court's lineup this fall, one involving the real estate industry (in which Roberts, as noted above, is also an investor).
Garre has been generous in his praise of his former colleague. He told the Los Angeles Times that Roberts' arguments were "difficult to tear apart. To do that over and over, where you might have gotten 50 questions from different justices, was what made John extraordinary."
Recusal is part of a huge — and largely unresolved — ethical debate: During a recent five-year period, 3,673 complaints against federal judges' actions or conflicts were closed by the judiciary with action taken against a judge in only six cases, an average of one response for every 600 complaints filed.
Federal law requires any federal judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned" and most have interpreted this to mean judicial disqualification should come "with even the appearance of impropriety." The law specifically states that federal judges should recuse themselves in cases they worked on while in private practice or in practice for the government and in cases where they have a direct financial interest. This law has been interpreted in dramatically divergent ways by the various justices.
The rules on Supreme Court recusals are less defined than for lower federal courts. Supreme Court justices are not subject to the Code of Conduct for U.S. Judges, which has stricter standards, although some have agreed to voluntarily abide by the code. It's up to the individual Supreme Court justice to decide if he should recuse himself from a case, and there is no mechanism for challenging that decision. This arrangement was evident most recently when Justice Antonin Scalia went duck hunting in 2004 with Vice President Dick Cheney while the court was considering whether the Bush administration should be required to release information about the private meetings of Cheney's energy task force.
Scalia saw no need for recusal then. "If it is reasonable to think that a Supreme Court justice can be bought so cheap," he said, "the nation is in deeper trouble than I had imagined."
Roberts' own history of dealing with potential conflicts of interest as a sitting justice is far from transparent. A request for his current list as an appellate court judge was denied by both Roberts' office and the clerk's office of the U.S. Court of Appeals for the District of Columbia Circuit. According to the clerk's office spokesperson, information about recusals in the federal courts is traditionally not made public. Each judge submits a list to the clerk, and those lists are reviewed privately by the judges' own clerks as part of the assignment process. At least two federal district courts voluntarily post recusal lists for their judges on their Web sites.
The spokesman at the clerk's office said the court does not give out information about recusals unless a judge announces it or makes it public. Roberts did so recently in once instance, concerning the case of the American Bar Association v. the FCC. Presumably Roberts saw a potential conflict of interest in making a ruling on the bar association at the same time the group was conducting its standard evaluation of a nominee to the high court.
But another hint of Roberts' narrow view of what constitutes a conflict of interest comes from a case he helped decide earlier this year, Hamdan v. Rumsfeld, regarding the Bush administration's war on terrorism. Since the decision was handed down, Roberts has admitted that he was already discussing his possible nomination to the high court with Bush's attorney general — six days before oral arguments in the case. And two and half months before Roberts took part in the Hamdan decision, he was interviewed by a group including Vice President Cheney, Karl Rove, Cheney's chief of staff, Scooter Libby, Attorney General Alberto Gonzales, White House chief of staff Andy Card, and White House counsel Harriet Miers.
This unusual scenario — with Roberts presiding over a case critical to the Bush administration at the same time he was being recruited by it to serve on the nation's highest bench — has some critics thinking of the Watergate era. Peter Young, a lawyer in the landmark Pentagon Papers case, has written for a legal blog comparing Roberts' refusal to recuse himself from Hamdan with a similar refusal by Judge William M. Byrne Jr., whom the Nixon administration was actively recruiting, at the time of the Pentagon Papers case, to head the FBI.
Sierra Club senior attorney David Bookbinder, who was involved in the Cheney energy task force case and who filed an unsuccessful motion to prompt a Scalia recusal, says Roberts should have recused himself on the Hamdan case "in a New York minute," since there were plenty of other judges who could have taken his place and helped the court avoid an appearance of impropriety. He worries that the case reveals Roberts' insensitivity to the recusal issue. "As chief justice, he will be the justice most in the public eye," says Bookbinder, "yet in a key example he avoided making sure there was no impropriety."
Roberts has stated, "If confirmed, I would resolve any conflict of interest by looking to the letter and spirit of the Code of Conduct for United States Judges … I would recuse myself from any matter involving my former law firm or former clients for whom I did work, for the periods specified in the Judicial Conference Guidelines."
"Periods specified" apparently means he can rule on any case involving former clients if he didn't work on the case himself. Otherwise, there seems to be no timeline or specific set of criteria. Given Roberts' career and investment history, will the Senate Judiciary Committee take that into account this week? The stakes are high: A justice who recuses himself from a case threatens the power of the Supreme Court by increasing the chances of a tie vote and therefore the possibility of a nonruling or a rehearing from the highest court in the land. But a justice who has reason and does not recuse him- or herself risks undermining the court in an even more drastic way.