Bush Nominee Roberts a Likely Ally of Employers

By Staff Report

Jul. 26, 2005

President bush’s Supreme Court nominee, federal appeals court judge John Roberts Jr., is likely to lean toward employers in workplace disputes. Scholars and lawyers, however, caution that a thin paper trail and the independence that comes with a seat on the nation’s highest court make him unpredictable.

“He is going to be a fairly reliable vote against workers’ rights across the board,” says Catherine Fisk, a law professor at Duke University and co-editor of Labor Law Stories. She reviewed nine cases that Roberts adjudicated on the U.S. Court of Appeals for the District of Columbia Circuit over the last two years. He ruled for the employer each time.

“My suspicion is that that pattern won’t change when he joins the Supreme Court,” she says. “He is a rock-solid conservative.”

Roberts’ political leanings are clear. He served in the White House and Justice Department for Presidents Ronald Reagan and George H.W. Bush. But supporters say he doesn’t force his core conservatism on others—or on the law.

“He is someone who cares a lot about getting the law right,” says Susan Carle, professor of law at American University in Washington and a colleague of Roberts’ at the Justice Department from 1989 to 1991. “He is not going to go beyond what the law allows him to do in implementing his conservative views.”

Recently, Roberts ruled to uphold an arbitration agreement between a staffing firm and an employee, but in a nod to the employee, he severed a clause related to punitive damages because it violated Washington, D.C., law. Thomas Berry, a lawyer with McMahon Berger in St. Louis, praises Roberts for being fair and thoughtful. “That’s all you can ask for (in) a judge,” he says.

Don’t expect Roberts to make new law. “He would look to Congress to do that,” says Louis Rabaut, a lawyer at Warner Norcross and Judd in Grand Rapids, Michigan.

Before Roberts can make rulings, he has to be confirmed by the Senate. While liberal and conservative groups battle fiercely over him, he benefits from his equanimity and intellect.

“He is in every way a straight-laced, straightforward, polite, quiet person, but very deeply committed to his view of the world,” Carle says.

Little of that view is laid out in black and white. “He doesn’t have a Bork-like paper trail,” says Jonathan Segal, a lawyer at Wolf Block in Philadelphia. “It’s hard to oppose someone on prior opinions if they’re not there.”

Roberts would replace Justice Sandra Day O’Connor, who was an ally of business but took a nuanced, pragmatic approach to employment discrimination, in part because of her life experiences. O’Connor was often the fifth vote in 5-4 decisions.

On the court, Roberts likely would grapple with affirmative action, the rights of professional employees, parameters for sexual harassment and gender-based stereotyping.

“I have a feeling Judge Roberts is not someone who is locked into his predispositions,” says Charlie Craver, a law professor at George Washington University. “Anyone who thinks they know how he is going to vote is crazy. I don’t think he knows how he’s going to vote.”

Mark Schoeff Jr.

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