Bench Memos

The Playboy Non-Story

According to Human Events http://www.humaneventsonline.com/article.php?id=8544, some conservatives are “alarmed” that John Roberts assisted other attorneys in his firm prepare to represent Playboy in the Supreme Court. Apparently his willingness to participate in a moot court is “very troubling” to some conservatives. Eugene Delgaudio of Public Advocate says conservatives should be “outraged.” Please. Like Roberts’ minor work in Romer v. Evans, and a host of other cases in which he helped clients push “liberal” positions, this is a non-issue, and the complaints are completely unfounded. Roberts was the premier appellate lawyer at his firm. Barring conflicts of interest, he had an obligation to assist his colleagues in high profile cases. No one claims he supported frivolous legal arguments or was seeking to advance a particular policy agenda, and it is a testament to Roberts’ legal abilities that he his assistance was so sought after.

These sorts of complaints have become commonplace in judicial and executive confirmation fights where advocates on each side have made a bad habit of imputing a unpopular clients’ views to their attorneys. Indeed, some environmentalists get particularly exorcised with nominees who have ever represented a corporation. One of the basic underlying values of our legal system is that all parties merit zealous representation, and it is improper to presume that he supported the position of those he helped represent. Indeed, the complaint here is as wrongheaded as NARAL’s charge Roberts was “supporting” abortion clinic bombers. Whomever the nominee, these sorts of attacks have no place in the confirmation debate.

Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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