Rising Hegemon
Senator Durbin:
Yesterday and again today, you've continued to prove your legal talents. I remember law students with your talents when I was in law school. I had to get to know them in the first year, because they were then off to the law review and I was off to buy another Gilbert's outline. I didn't see them again.
But today, I've noticed the questions have changed some. The questions now are more -- they've gone beyond your resume and beyond your legal skills. And I think it relates to the fact that so frequently, when asked, you have said, appropriately, that you will be driven and inspired by the rule of law, which is an appropriate term, but a hard and cold term by itself. We know you have the great legal mind and have proven it with the questions here. But the questions that have been asked more and more today really want to know what's in your heart. And I think those are appropriate. When you look down from the bench or read a trial transcript, do you just see plaintiffs and parties and precedents, or more?
Do you see the people behind the precedents? The families behind the footnotes? I think that's what many of us are driving at with these questions.
You've lived a comfortable life. Court cases often involve people who have not. Many times contests between the powerful and the powerless, as someone said in the opening statement, the powerless, just with the rule of law and the Constitution on their side, praying for relief, for their day in court.
Aside from a few pro bono cases, as important as they are -- and I salute you for being involved in them -- what would the powerless, the disenfranchised, minorities and others see in your life experience that would lead them to believe that they would have a fighting chance in your court?
Good question, Senator. Please allow me to answer for the nominee. NOTHING. NADA. ZILCH.
ROBERTS: It's hard for me to imagine what their case is about, that I haven't been on their side at some point in my career.
If it's somebody who's representing welfare recipients who have had their benefits cut off, I've done that.
If it's somebody who is representing a criminal defendant who's facing a long sentence in prison, I've done that.
If it's a prosecutor who's doing his job to defend society's interest against criminals, I've been on the side of the prosecution.
If it's somebody who's representing environmental interests, environmentalists in the Supreme Court, I've done that.
If it's somebody who is representing the plaintiffs in an anti- trust case, I've been in that person's shoes.
ROBERTS: I've done that.
If it's somebody representing a defendant in any trust case, I've done that as well.
It's one of the, I think, great benefits of the opportunity I've had to practice law as I have is that it has not been a specialized practice. I've not just represented one side or the other. I've represented all of those interests.
And I think those people will know that I have had their perspective. I've been on the other side of the podium with a case just like theirs. And that should, I hope -- and I hope it does now -- encourage them that I will be fair and that I will decide the case according to law but I will have seen it from their perspective.
Let me assure those non-lawyers in the audience that doing pro bono legal work for criminal defendants as an appelllate advocate bears absolutley no resemblance to the nitty gritty practice of law in the trenches where real battles over life and limb are fought. This also says nothing of the reality of doing the tough work while trying to beat out a living doing so. Being on top of the ivory tower does not allow even a peek at the lives of the poor, the powerless, or the downtrodden, no matter what you say.
DURBIN: So let me follow through on that because I think that's what people need to hear. But we need to apply it to your real-life and legal experiences.
Let me talk to you about a case that you were a private attorney and involved in. Today, there are about 45 million uninsured people in America. Too often, Americans with insurance can't receive coverage for medically necessary procedures and have to fight the insurance companies.
In my home state of Illinois we have a law called the Illinois Health Maintenance Organization Act. I think you're familiar with it. It provides that if a patient's primary care physicians deems a proposed procedure to be medically necessary but their HMO disagrees and denies coverage for the procedure, the patient may have the HMO's decision reviewed by an outside physician, the determination of that outside physician binding on the HMO.
You challenged this law on behalf of an HMO that refused to pay $95,000 for the shoulder surgery of Debra Moran of my state of Illinois.
Case went to the Supreme Court in 2002. You argued for Rush Prudential and you argued they weren't subject to the Illinois law and the governing HMOs because you said they weren't really an insurance company.
You claimed that since the HMO was not providing health care, but merely a promise to pay for health care, it was exempt.
Thankfully, from my point of view, you lost the case. If you had won it it would have put millions of American consumers and families at risk of losing coverage for necessary health care.
Judge Roberts, did you have any reservations about taking this case?
What sayeth the good judge?
ROBERTS: No, Senator, I did not.
The result in the case, I did lose. I lost 5-4 if I'm remembering correctly. In other words, four of the justices on the Supreme Court thought the argument I was making on behalf of my client was correct.
It has always been my position that I do not sit in judgment other than once I have satisfied myself that the legal arguments are reasonable ones, within the mainstream, if you will, that I don't decide whether that's the way I would rule as a judge or whether I would rule the other way.
My practice has been to take the cases that come to me and if the other side in that case had come to me first I would have taken their side.
DURBIN: So you didn't step back at any point in your practice and say, No, I'm not going to do this; I can't be associated with a case or cause even though it may be legal and ethical that might cause so much harm to so many innocent people ?
ROBERTS: That's a judgment for the legal system to make, asserting legal rights. Lawyers aren't judges when they're representing clients. They don't sit there and say -- well, maybe some do, I don't. I think it's a basic fundamental principle of the legal system and the bar that you take clients who have reasonable arguments -- now, I'm not talking about frivolous arguments. I don't take cases in which those are raised.
But the lawyers aren't the judges. The judges are. Now the case you mentioned, you've explained the arguments on one side, there were legal arguments on the other side. And four justices agreed with those.
This isn't an extreme case when it's decided 5-4. And that's one of the very point I was making earlier; that I take cases on all sides of the issue.
Interpretation: As long as you could afford his $600 per hour rate, you could afford the best damned lawyer in town. Period. That is the kind of lawyer John Roberts was. He didn't choose his clients, they chose him and his fat cat law firm rates. How many "real people" do you think could afford him?
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