Bench Memos

“Bum Rap”

To his credit, Lawrence Tribe, who argued against Roberts in the now famous abortion case of Rust v. Sullivan, just said on Fox News that it would be a “bum rap” to hold Robert’s language from his brief recommending the overturning Roe against him, given his role as an advocate for his client. This will be an important point, not just for this case, but for others. Inevitably, the tin-foil-hat set will be combing though every brief he has ever written in order to courts in order to find unpopular positions. But lawyers necessarily make arguments that they would not necessarily endorse as a judge. Lawyers commonly write things which contradict their judicial philosophies. For example, many textualists believe that courts should never look to legislative history. Even so, very few textualist lawyers would fail to make an argument from legislative history if it had the potential to benefit their client. The other argument you are likely to see is that he is somehow pro-corporation, or pro- some particular type of corporation because his firm represented them. Again, however, lawyers often represent clients with whom they disagree. Anyone doubting this need only know that most lawyers at big firms lean to the political Left, and yet a fair number of them have to represent big tobacco.

Robert Alt is the president and chief executive officer of The Buckeye Institute.

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