It would appear that Judge Roberts donated his time and his racionative powers to the cause of gay rights in the case of Romer v. Evans (1996), when the SCOTUS struck down a Colorado state constitutional amendment exlcluding gays from protection against discrimination under state law. He didn't argue the case or write any briefs, but it appears he helped the lawyers for the gay rights side by reviewing their court filings and helping them prep for oral argument, on a pro bono basis.
So, how do you all think this will affect his chances? It doesn't look like there will be too much hammering from the left, even though a lot of people on the left are more than a little nervous about the prospect of him sitting on the Court. There hasn't been a whole lot of noise, and neither Senate Democrats nor activists look at all like they're gearing up for a fight such as was seen for Bork or Thomas. Their powder is looking more than a little damp.
But does anybody think Roberts might get hammered some from the right because of this? If so, how much?
The biggest concern to many isn’t whether Roberts “sealth” candidacy shields beliefs consistent with Scalia or Kennedy, but whether Roberts will be another Souter–someone who is billed to all–even the President–as being one thing, until he got on the SC bench. Ultimately, though, I think both sides are in the “Roberts doesn’t yet appear to be our worst nightmare, so we’ll let him slide for now” phase.
Roberts could be a far right-winger, yet appear as a reasonably mainstream and telegenic lawyer. This concerns liberals, but as a stealth candidate, there is scant evidence to definitively prove this, at least sufficient enough to warrant a filibuster. Sure, some of his writings suggest argumentation consistent with that of the right wing. (The argument that his role as an advocate muddles the issue is a bit disingenuous; you don’t find too many right wingers working for the ACLU, or “liberals” working for the Reagan administration, and even if you did, you are not likely to see them becoming a strong advocate against their own positions.) But, this alone is insufficient to derail a nominee.
Conservatives are sitting on their hands. Roberts has to be at least as conservative if not more conservative than O’Connor. So, anything is a plus. But, I have to think they are hoping for something a bit more “right of center” than even Roberts will provide even if his writings are taken at face value. But what is most surprising is the near universal praise from the Right. That is why the Democrats and liberals want to dig more–there has to be some reason every conservative group is praising him, despite little record. After all, this is an ideology that takes out its trash in public (think John McCain). But in the end, the whole issue of gay rights may temper what enthusiasm does exist for Roberts, but I don’t think it alone will do much.
What we know, if we can really know anything, is that Roberts is a conservative. Even if he were derailed, another conservative nominee, likely as just “to the right” or even moreso, would be nominated. So, I suspect liberals are saying “Roberts isn’t so bad, and anyone nominated in his place would likely be even worse, so we need to chill out on this one.” If, however, something extreme came out, like he believes in the archaic “original intent” doctrine, then there would be a fight, a la Bork.