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When he was pitching himself to George W. Bush for a seat on the highest court in the land, John Roberts famously declared that judges should be like “umpires,” making calls but never stepping up to the plate for either team. Bush liked the line so much he didn’t just give Roberts a seat on the Supreme Court, he installed him as chief justice — the youngest person to hold that job in almost 200 years.
A new book, Without Precedent — an excerpt of which has been shared exclusively with Rolling Stone —suggests another powerful reason why Bush may have felt such extraordinary confidence appointing Roberts to the most powerful position in the U.S. judiciary.
At the time that Roberts was auditioning for the job, he was also presiding over a critical case to which the Bush administration was a party — and rather than acting as an ump in that case, author Lisa Graves suggests, Roberts was practically pinch-hitting for Bush and his cronies.
The case in question revolved around whether Salim Ahmed Hamdan, the driver for 9/11 mastermind Osama bin Laden, should be treated as a prisoner of war under the Geneva Conventions. The three-judge panel on which Roberts sat ultimately ruled in favor of the Bush administration, who argued the Geneva Conventions didn’t apply to Hamdan. The ruling was later overturned by the Supreme Court, and Hamdan’s conviction was ultimately vacated.
A judge in Roberts’ situation —interviewing for a job with a plaintiff of a case they were ruling on —would normally be compelled to recuse himself to avoid any appearance of a conflict,but Roberts didn’t. Not only did he not recuse himself, when questioned about whether he ever considered recusing himself, Roberts refused to answer, insisting that the Judicial Canon of Ethics prohibited him from discussing a case that was still pending. (By that time, Hamdan’s lawyers had appealed the ruling to the Supreme Court.)
Graves has been a close observer of Roberts’ career for decades. As the chief counsel for nominations on the Senate Judiciary Committee in the early 2000s, she was in charge of vetting and recommending judicial nominees. Roberts was one of the first of those pushed through for a confirmation to the D.C. Circuit when Republicans regained control of the Senate in 2001. From the very beginning, Graves says, it was clear Republicans had big plans for Roberts.
“I thought he would be their choice for the Supreme Court, and he would be a destructive choice,” Graves tells Rolling Stone. “And that he would be more effective than his mentor, Bill Rehnquist, who did not have Robert’s charm.”
Her prediction came true: Just a few years later, in April 2005 — days before he was set to hear oral arguments in the case Hamdan v. Rumsfeld —Roberts sat down for his first interview with Attorney General Alberto Gonzalez.
The Hamdan case, Graves argues, was Roberts’ “original sin,” and one that goes a long way toward explaining why Roberts has failed so spectacularly as successive ethics scandals have engulfed the high court. “If you realize what he did to get the job — staying on that case that he had no business staying on, a case where the Supreme Court reversed him ultimately — I think that it reveals that we’ve placed false hope in Roberts being fair, and in Roberts not being motivated by his own desire for power.”
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The following is an excerpt from Without Precedent by Lisa Graves.
In December 2004, Roberts was assigned to a three-judge appellate panel to hear a case called Hamdan v. Rumsfeld. On April 1, 2005, just 30 days later he joined an order scheduling oral arguments in that case, Roberts was interviewed by President George W. Bush’s second attorney general, Alberto Gonzales, for a vacancy that Bush was anticipating on the U.S. Supreme Court. On April 7, Judge Roberts heard oral arguments from Gonzales’s Department of Justice on the question of whether Salim Ahmed Hamdan — a driver for Osama bin Laden, the al Qaeda leader who orchestrated the 9/11 attacks on the U.S. — was a “prisoner of war” under the Geneva Conventions. If the D.C. Circuit found that Hamdan was a prisoner of war, then he would be subject to court-martial under the Uniform Code of Military Justice; if he was not, then the administration was set on trying him before a military commission convened under special orders issued by President Bush. In other words, U.S. Circuit Court Judge John Roberts was secretly interviewing with a litigant in a very important case he was presiding over.
Even though he had just interviewed for a Supreme Court appointment, which the president held the sole power to offer him or not, Roberts did not recuse himself before the oral argument in Hamdan. On May 3, as he and two of his fellow judges were considering the case, Roberts interviewed again with the head of the Justice Department, along with Vice President Dick Cheney, President Bush’s chief of staff (Andrew Card), the White House counsel (Harriet Miers), President Bush’s deputy chief of staff (Karl Rove), and the vice president’s chief of staff (Lewis Libby). Of particular note was Dick Cheney, who played a central role in the response to 9/11 and who actively worked with then-White House Counsel Gonzales to declare people like Hamdan “enemy combatants,” precisely so they could not invoke the rights secured by the Geneva Conventions. Those highest officials in the Bush administration knew Roberts was sitting on the three-judge panel considering their legal arguments for overturning a lower court’s ruling against the Bush-Cheney-Gonzales scheme. Roberts knew that they knew that too.
Three prominent legal ethics professors later concluded that this arrangement was illegal under federal law, which “requires judges to step aside if their ‘impartiality might reasonably be questioned,’” even in instances where the judges are actually impartial. On May 23, 2005, Roberts had yet another interview with Bush’s proxies, in this instance with Miers. Then on July 1, while the Hamdan case was still pending before John Roberts, Justice Sandra Day O’Connor announced her retirement. A week later, on July 8, Roberts had another interview with Miers, along with Deputy White House Counsel William Kelley, by phone. That would have been when the draft ruling in Hamdan was circulating, as is customary the week before a ruling is issued.
At no time after any of these four sets of interviews did Roberts recuse himself from the case or tell Hamdan’s lawyers that he was seeking a big promotion — the biggest — from Bush.
On July 15, the very day that the D.C. Circuit issued its order, which was joined by Roberts and which sided with the Bush administration, Roberts was interviewed by President George W. Bush himself. That’s where Roberts tried out his good-judges-are-like-baseball-umpires line for the Texas Rangers’ superfan at the White House. Four days later, Bush announced he was nominating John Roberts to the Supreme Court. Most reporters neglected to cover this as the enormous conflict of interest that it was. Instead, much of the coverage recited Roberts’ self-serving version of the timeline that focused on his scramble to return from London, where he was supposed to teach a class, for the meeting with Bush, after which he would be nominated in the wake of O’Connor’s sudden retirement a few weeks earlier. In reality, Roberts’ interview process with a party to a major case he was presiding over was much longer than that — more than one hundred days long, in fact.
It strains credulity to believe that Bush would have chosen Roberts if Roberts had ruled against him in his administration’s then-most important case involving the War on Terror. Had he wished to put integrity over ambition, Roberts could have withdrawn from participating in the case, but doing so might have hurt his chances of getting the most powerful role in the American court system. Roberts’s ruling — along with the cleverly crafted baseball umpire image — surely helped him clinch the seat over the other finalist, Judge Michael Luttig, a true-blue conservative who had come up with Roberts in the Ronald Reagan and George H. W. Bush administrations. Because Roberts failed to reveal this profound conflict of interest, neither Hamdan’s attorney nor the attorneys who filed amicus briefs had any opportunity to ask him to recuse himself under 28 USC § 455. That statute commands that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” How could Roberts be impartial if ruling for or against the very administration appearing before him could affect whether he got the job he was secretly being interviewed for, a job he intensely wanted? The conflict of interest existed even if his interviewers were not foolish enough to ask him how he would rule. The outcome was implied.
Sen. Chuck Schumer and Sen. Russ Feingold (D-Wisc.) did ask Roberts about the case, although this line of inquiry at the nomination hearing received relatively little press attention. When Sen. Feingold asked Roberts whether he’d considered recusing himself, Roberts refused to answer and even asserted that the Code of Conduct for U.S. judges barred him from answering because Hamdan had filed an appeal asking the U.S. Supreme Court to hear the case. Roberts claimed that Canon 3A-(6) forbade him from commenting on a case while it was pending appeal, but the senators were not asking him to comment on the merits of the case — which were obvious in the written decision he joined. Instead, they were rightly asking him to answer for his own conduct in failing to recuse himself from participating in a case while seeking a huge promotion from a party to the case. If it had been a law firm on one side of the litigation that he was interviewing with, such a breach would have been obvious and intolerable, too. A master of oral advocacy, Roberts literally used the ethics code to sidestep questions about his own ethics, even though the top line of Canon 3 of the code requires a judge to “perform the duties of the office fairly, impartially and diligently.” Roberts failed in those duties completely.
Republicans recruited a GOP-aligned law professor to run interference against the trio of more widely well-regarded ethics professors who agreed that Roberts’ secret job interviews created, at a minimum, the appearance of impropriety. The trio noted that Roberts had cast a decisive vote against the Geneva Conventions and for President Bush. As they explained, even vaunted conservative Judge Richard Posner observed in a similar scenario that “the dignity and independence of the judiciary are diminished when the judge comes before lawyers in the case in the role of a supplicant for employment.” I don’t think any reasonable person who was not a partisan for Roberts would believe that he was acting impartially in continuing to participate in that case and ruling in favor of the Bush administration, with a seat on the Supreme Court on the line. His participation was part of his audition: Would he follow the long-standing law on prisoners of war, or would he side with the controversial procedures dictated by a president embroiled in a rolling scandal over leaked evidence of torture and abuse in violation of long-standing provisions of the Geneva Conventions? We all know how that turned out.
After Roberts was pushed through to confirmation, however, he did then recuse himself from the case when it was before the Supreme Court — because he had participated in the earlier ruling. But his compliance with that ethical standard then does not negate his failure to do so when it benefitted him immensely to rule for Bush. While he may well have sided with Bush without the promotion on the line, that does not undo his conflict of interest in ruling for the man who had the power to decide whether to select him for a seat on the nation’s highest court. When the eight other members of the Court considered the case, they reversed the opinion Roberts had joined while interviewing with the Bush administration, something a keen judicial observer like Roberts probably anticipated when he made his ruling. The fact that the ruling was overturned only underscores John Roberts’ calculated ambition in ruling for his patron and in hiding behind ethics rules to avoid questions about his deliberate and repeated ethical failures in doing so.
Most alarmingly, he got away with it.
How could he be expected to uphold ethical rules for other justices, even with evidence of egregious violations and self-enrichment by Thomas, when he failed to apply them to himself?
