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Friday, Jul 10, 2009
John Roberts' ties to corporate America, and his potential for conflicts of interest, would be unprecedented for a sitting justice. Will the Senate notice?
Sep 13, 2005 | "I have no platform," said Chief Justice-designate John Roberts to members of the Senate Judiciary Committee when hearings convened Monday on Capitol Hill. "I come before the committee with no agenda."
But what Roberts does bring before the committee is a long list of ties to corporate America from his years of working as a lobbyist and an attorney in Washington on behalf of business and special interest groups. He also gives the Judiciary Committee a golden opportunity to shed light on a thorny but still largely ill-defined issue: how Supreme Court justices should contend with potential conflicts of interest, including whether they should recuse themselves from a case.
Within minutes of the White House announcement of Roberts' nomination in July, U.S. Chamber of Commerce president Thomas J. Donohue praised him as "highly regarded and well-respected by the legal and business communities." On its Web site, the National Association of Manufacturers prominently features a photo of Roberts (along with a new blog on judicial nominations), accompanied by the headline "The Business Case for Supreme Court Chief Justice Nominee John Roberts."
Roberts is the beneficiary of the organization's first-ever lobbying campaign for a Supreme Court nominee. Two members of its executive committee represent corporate interests that Roberts himself represented as an attorney: Toyota and the coal mining industry.
As the Senate deliberates whether Roberts should lead the nation's highest bench for what may be decades to come, the issue of judicial conflict of interest is relevant like never before. With respect to corporate America, Roberts' career and financial-investment profile stand out among sitting judges: His 2005 financial-disclosure form lists 78 stock holdings, which range from high-tech to healthcare, to mass media and corporate real estate. His net worth has been listed at roughly $5.3 million, and his earnings at law firm Hogan & Hartson were more than a million dollars in 2003.
It's difficult to predict what cases will come before the court in the coming years, but Roberts' personal investments in numerous top companies across a variety of industries make him a prime candidate for appearances of impropriety. Companies whose stock he owns in the high-tech and telecom sectors include Dell Computer, Microsoft, Texas Instruments, Intel, Agilent, Cisco, Novellus, Hewlett-Packard, Lucent and Nokia. In healthcare: Pfizer, Merck, Johnson & Johnson, AstraZeneca, Hillenbrand, and Becton, Dickinson. In big media: Time Warner, Disney and Blockbuster. In finance and real estate: Citigroup, State Street and Washington REIT. (Experts will presumably advise Roberts to avoid recusals related to his extensive stock holdings by placing his assets in a blind trust.)
Specifically, Roberts' Pfizer stock presents a potential conflict with an upcoming high-court case for which the drug giant has filed a friend-of-the-court brief. Meanwhile, his work for Chrysler and Toyota could be a conflict in an upcoming case involving the National Automobile Dealers Association, while a mining company has a case on the docket with potentially significant implications for the industry -- another for which Roberts worked. Such cases, with industry-wide implications, may explain why the National Association of Manufacturers' head, John Engler, has asserted that Roberts is a jurist who "get[s] it right."
Roberts' mentor, the late Chief Justice William Rehnquist, expressed in 2000 his widely held but stringent take on one facet of the matter: "[A] judge should recuse himself whether he holds one share or a thousand shares of stock in a corporation that is party in a case before his court."
But that may be just the beginning of the issue. Rehnquist's approach, which is based in federal law, lets judges avoid grappling with messier potential conflicts -- including, in Roberts' case, those involving business clients that helped him finance his investment portfolio.
Beyond his stock holdings, some of the corporate clients Roberts represented while in private practice at Hogan & Hartson, where he was a partner for 12 of his 13 years, could also present the appearance of impropriety if Roberts were to rule on a high-court case involving them. They include Fox Television, Digital Equipment, Peabody Coal and the National Mining Association, Litton Industries, Rush Prudential HMO, Toyota, Chrysler and NBC. In addition, Roberts lobbied successfully for the peanut industry in 1996 and 1997 to keep huge federal peanut farming subsidies intact; he was a registered lobbyist for the Cosmetic, Toiletry and Fragrance Association; and he represented the cattle industry.
As chief justice Roberts may also run into conflicts of interest with a former colleague from Hogan & Hartson, Gregory G. Garre, who worked with Roberts for years and succeeded him as head of the firm's Supreme Court and appellate practice. Garre has two cases on the court's lineup this fall, one involving the real estate industry (in which Roberts, as noted above, is also an investor).
Garre has been generous in his praise of his former colleague. He told the Los Angeles Times that Roberts' arguments were "difficult to tear apart. To do that over and over, where you might have gotten 50 questions from different justices, was what made John extraordinary."
