With the proper media focus on the horrors of Hurricane Katrina and the subsequent preventable destruction by flooding of lives, hopes and jobs, the Senate Judiciary Committee hearing this week on the nomination of Judge John G. Roberts Jr. to be Chief Justice of the Supreme Court of the United States will be fighting for public attention.
That is too bad. Supreme Court nominations are a rare opportunity for millions of Americans to watch, learn and converse about what the Court, the Constitution and the Justices mean for their way of life, their freedoms and their livelihoods.
The expected alignments, called left and right by the press, are hard at work opposing and supporting the nominee.
The odds now are heavily in favor of Judge Roberts becoming Chief Justice. He is experienced, having been a Supreme Court clerk to then Justice William Rehnquist, an attorney in the Reagan White House and a lawyer in the Republican Justice Department who argued cases frequently before the High Court.
He spent more than a decade in corporate law practice at the Washington, D.C. firm of Hogan & Hartson, thereby confirming his acceptance to the business community. He is amiable, outwardly humble, avoids abrasive language and is praised by his lawyer peers as rising above the frays in his lawyerly demeanor.
In addition, the Republicans control the Senate. They have the votes, except to overcome a potential filibuster which is unlikely if only because the Democrats can’t deliver all their own Senate votes.
Already, Judge Roberts’ most vulnerable side — relating to questions of the law and corporate power — is not included in either the Democratic Party’s visible focus or in the scheduled twelve witnesses permitted them by the Republicans. Apart from former EPA head under Clinton, Carol M. Browner, none of the other witnesses is likely to touch on regulatory matters, civil justice, corporate criminal law and constitutional issues relating to corporations. There is also the growing double standard in the law’s treatment of corporations (artificial persons) in contrast to real people.
President George W. Bush, on numerous occasions, has declared that his judicial nominees be people of character, high ethical standards and strictly apply the Constitution to the cases they judge. Let’s take those yardsticks and suggest some questions that should be put to Judge Roberts.
1. The legal literature and reporting are replete with examples of large corporate law firms overbilling their clients. They cheat their clients three different ways. First they charge for more hours than they actually work. Second they deliberately overlawyer, performing and billing for unnecessary tasks including using costly partners and associates for ministerial or duplicative work that can be done by secretarial labor or paralegals. Third, they pad their expenses with outrageous markups.
In the book, NO CONTEST, which I co-authored with Wesley J. Smith, nine years ago, numerous documented examples of gross overbilling, much of it criminal in nature due to its deliberate intent, were described. Corporate attorneys themselves have written books and articles about the culture of over-billing. Others have been accurately quoted to this point. One attorney recognized the BUTS principle. BUTS stands for Bill Until They Squawk’.
At one large law firm, several partners each billed over three thousands hours per year (almost impossible to do, by the way) when their extensive absence from the office contradicted their billing entries. The highest billers got the biggest bonuses. One large Los Angeles firm even charged clients for the flowers sent to their own funerals, the larger the estate to be probated, the larger the flower bill.
Judge Roberts should be asked about his former firm’s billing practices. Then asked about his own billing practices and whether they differ in any appreciable way. Ethical standards and character reveal themselves in billing practices writ large or writ small. Cheating and stealing come in many formats.
If Hogan & Hartson, an above average law firm, and its former corporate attorney, John G. Roberts are clean, then there is no issue. If the practices are questionable, a much more detailed inquiry and demand for documents by the Committee are essential.
2. A lawyer’s character and application of legal ethics comes out of his/her pro bono work. What kind of pro bono work did Attorney Roberts do, and what percentage of his working time did he devote to such work, is a fruitful line of inquiry.
3. Lloyd Cutler, speaking as a prominent corporate attorney, once said, “There is one point I want to make clear: we believe in the arguments that we make.” Attorney Roberts represented many corporations on many causes. Did he believe in those causes? Or was here merely a hired hand in some of those cases?
Some leading corporate attorneys do not like to be seen as hired hands, however expert they may be. Because they want to be able to say that they turn down corporate clients whose agendas are deemed too odious. Hale and Dorr, a large Boston firm, for years refused all tobacco industry clients, for example.
It is a window into whether John G. Roberts, Jr. viewed his profession as an independent one willing to reject lucrative corporate clients, or a trade whose profit and commercialism reign supreme.
4. Where in the Constitution, strictly applied, can Congress abdicate its authority to declare war or enact global trade agreements with their own enforcement powers over-riding or displacing our courts and regulatory agencies?
There are many other important questions to ask of Judge Roberts that probably won’t be pursued. Only three or four days of hearings are scheduled for his proposed lifetime tenure. Many Senators balk at asking questions on controversial subjects that do not have powerful or vocal constituencies.