Judging Mr. Right

By NANCY GIBBS

It's good thing that John Roberts has been universally described as decent, funny, civil and fair, since he may be joining a court with a long history of pugilists, ideologues and misanthropes who have somehow made it past the U.S. Senate. Justice James Clark McReynolds, who served until 1941, was, in the words of historian David Garrow, a "drooling anti-Semite" who refused to speak with fellow Justices Louis Brandeis and Benjamin Cardozo or have his picture taken with them. Chief Justice Fred Moore Vinson was a glorified drinking buddy of President Harry Truman's whose sudden death was hailed by fellow Justice Felix Frankfurter as "the first indication I have ever had that there is a God." Justice Potter Stewart's friends said Stewart resigned partly because he couldn't stand Warren Burger any longer; Burger, he said, was like the show captain on an ocean liner who entertains passengers in the dining room while the real captain steers the ship.

To listen to people who have known him longest, what sets Roberts apart is not so much his individual virtues but how they marry: a great talker who listens well, a natural talent who works unnaturally hard, a regular guy who moonlights as a legal star. In his prime-time introduction of his nominee to take the place of retiring Justice Sandra Day O'Connor, President George W. Bush drove right past the fact that Roberts is a reliably conservative fellow who would not "legislate from the bench" and lingered instead on the career and character that would make him so valuable on the court, and so invulnerable to attack.

He talked of Roberts' emerging from Harvard with honors and summers working in a steel mill, introduced his family, talked of his heart, which is Bush code for "he's my kind of guy, so I don't need to get into specifics." To focus more on where the man comes from than on anything he has argued in 24 years as a government and corporate lawyer is not just a political smoke screen. It is a reminder, first, that it is a lawyer's art to offer arguments detached from beliefs; and second, that whatever issues the court faces, a Justice likely to serve for 25 years is bound to travel down legal roads that have not yet even been paved.

As the first nominee of the Internet age, Roberts will now be strip-searched by uncountable bloggers and interest groups even before the Senate starts confirmation hearings, probably in September. Between now and then, the great inquisitors, amateur and professional, will look at every person he has known, every penny he has spent, every word he has written and every clue he has dropped about where his interests lie. But for all the predictions of a nuclear winter once the choice was announced, the political climate so far has remained remarkably calm. President Bush, having held the decision close, could only savor the spectacle of paralyzed Democrats grasping for something to object to, liberal activists being forced by the sheer weight of Roberts' rectitude to say they would withhold judgment. The New York Times profile poured across the front page to two more full pages inside without uncovering one single person who knew Roberts and had a harsh word to say.

Such scrutiny, however, does not rule out a surprise, either a scandal in the past --or a path in the future unknown for now even to Roberts. Some Justices, like conservatives Antonin Scalia and Clarence Thomas, have consistently played to type; some, like John Paul Stevens and David Souter, ignored the beliefs of the Republican Presidents who picked them. And some, like O'Connor, have evolved over their tenure and been powerful precisely because they could be unpredictable. There is no way to be certain what effect the court will have on each new member. Appointed for life, they answer to one another and their consciences, and so for now one can only imagine what that conversation might sound like.

BOY WONDER

Roberts' resume reads so perfectly that it is easy to find the little flakes of destiny littered through his storybook life. Born in Buffalo, N.Y., but raised in Long Beach, Ind., a small town sprung from the sand dunes on the southeastern edge of Lake Michigan, Roberts was in second grade when he won his first case. He had got in a fight with classmate Timmy, which climaxed with his hurling an orange at Timmy's head and splattering a classroom wall instead. Called to account in the principal's office, he argued that the classroom mess was "all Timmy's fault--if he hadn't ducked, the orange wouldn't have hit the wall." His longtime pal Richard Lazarus, now a law professor at Georgetown, laughs as he tells the story, which has become a piece of family legend. "What truly astounded the principal at the time," he says, "is that he actually had been persuaded it was Timmy's fault."

Most early impressions of Roberts cast him as a nobler character: big brain, big heart. He was the kind of boy whose eighth-grade math teacher kept his birthday in her birthday book all these years, alone among her generations of students. "I like to think that was an omen for wonderful things to come," says Dorothea Liddell. He was way clever, she recalls, so much so that if he didn't get a concept she knew she had to teach it again, but "he never flaunted his intelligence over the other kids." Classmate Betsy Starr Swan remembers the science fair in which her team's water-purification exhibit lost out to a Roberts-designed automatic table fork. "I don't think he ever lost a spelling bee. We'd all line up at the chalkboard, but we knew John was going to win." When he got things wrong, classmates assumed it was the teacher who had made the mistake.

For high school, Roberts applied to La Lumiere, a competitive Catholic boarding school about 12 miles away in La Porte, Ind. "I won't be content to get a good job by getting a good education," he wrote at age 13 in an application letter. "I want to get the best job by getting the best education." It was an all boys' school when Roberts entered in 1969--"Most of our dating life came from observing the school dog, Daisy," says schoolmate Tommy Kerrigan--and free time was consumed by three mandatory sports (Roberts ran track, wrestled and was co-captain of his football team), the newspaper (he was co-editor) and drama (he once played Peppermint Patty in You're a Good Man, Charlie Brown). Not everyone in an all boys' school is willing to play a girl; it takes an extra gene, the one that lets you not take yourself too seriously.

But it was in class that he excelled, in a way that forced other boys and even teachers to raise their game. He dragooned the Latin teacher in 12th grade into helping him translate Virgil after he had finished all the course work. He was famously able to absorb information: "Somebody'd jokingly ask about some small detail, and John would say, 'That's the second stone of a ring the Pharaoh wears on his third finger,'" recalls his roommate Bob MacLaverty. "We'd go look it up, and, sure enough, he'd be right. He was careful about the little things most people blow past." As a kid, he almost seemed to get how adult minds worked: he helped devise a strategy to push the headmaster for major changes in curriculum in hopes of getting the smaller changes the students actually cared about, like losing the required suit jackets in favor of La Lumiere sweaters. One schoolmate, Carey Dowdle, who watched him stride to the podium next to the President last week, felt he had seen the first steps in that journey. "I thought, It's been 30 years, but he still walks exactly the same. He walked with that same air of confidence and determination 30 years ago," Dowdle says.

Roberts made it through Harvard in three years, summa cum laude, on his way to Harvard Law School. Cambridge in the mid-'70s was a less fractious place than it had been during the height of the war protests, and while Roberts was known for being personally conservative right down to his unvarying choice of chocolate-chip ice cream, he was never rigid or doctrinaire; a placid debater, he stood his ground but never paraded his intellect. "There was an older faction that we jokingly called the refugees from the '60s. And there were very large egos there. Humility was not exactly an admissions criterion at Harvard Law," says classmate Bill Kayatta, a lifelong Democrat. "But with John the debates never became ad hominem. He was a very good listener. And we even managed to convince each other to change our minds on issues every once in a while."

He rose to become the managing editor of the Law Review, sometimes sleeping overnight in the office, the one who made sure all the flights of genius came in safely for a landing without ever committing his own philosophy to paper. "There were a few people on the Law Review that were social conservatives, very strong views about abortion, separation of church and state. John was not one of them," recalls classmate Steve Glover. "John's approach, as I recall it, was very lawyerly, in the sense that he was very much focused on case law and the precedent that courts had set before." That mind-set prepared him well for the apprenticeship that followed Harvard and that he cherished above all: his clerkship with Judge Henry Friendly, a respected Second Circuit judge known for his careful, almost handcrafted, opinions and mindful of what his legal forebears had laid out. In some ways that training was even more informative than the clerkship that all but inevitably followed, with Justice William Rehnquist.

COURTING POWER

On the squash courts of Washington, where the knees and egos of all species of striver take a beating, Roberts is an especially dangerous opponent. "When you're playing squash with someone, you need to know whether they're right-handed or left-handed because it dramatically affects your strategy," says his friend Lazarus. But Roberts is ambidextrous. Faced with a tough backhand, Roberts would just switch hands. "I've played with a lot of people over a lot of years, including Scalia," says Lawrence Robbins, a fellow Harvard Law School alum, "and John's the only one I know who can do that."

That's why those poring over the Roberts record will have such a tough time finding an ideology. Law professors can afford to offer grand theories; practicing lawyers want to win. The very best players--and Roberts is unquestionably one--can argue all sides of any issue, because that is what they get paid to do. So all the selective readings of his case file obscured the point that he argued for and against affirmative action, for and against environmental regulations, argued that Roe v. Wade should be overturned when he was representing a Republican President and then described it as settled law when he was speaking as a nominee to become an appellate judge.

Given the uncertainty, his manner and his habits of mind take on greater importance--and here there is an extraordinary consensus about his powers to win whatever argument he is in. As Solicitor General, Ken Starr had his share of Supreme Court encounters in the first Bush Administration. He remembers returning to his office in the Justice Department one day after arguing a case before the court. His principal deputy walked into the office and closed the door. "Ken, let me tell you, you're waving your arms too much," Roberts said gently. He then started flailing his hands and arms to demonstrate what his boss had just done in front of the Justices. "It looked like I was trying to take off, birdlike," Starr says, chuckling. "He was right, and I began disciplining myself to hold my arms behind my back, grab the podium and generally use my hands in less wildly gesticulating ways." During staff meetings to thrash out important cases, Starr found that Roberts was distinguished by brainpower and a striking absence of guile. He had the ability to "get along with the large egos that tend to dot the landscape on the fifth floor of the Justice Department," Starr says, hinting at an advantage Roberts would bring to the court. "Even though he would be the smartest person in most rooms, he never acted that way. But what he says has such force that it's quickly apparent."

Roberts seemed on a fast track to judicial glory in 1992, when George H.W. Bush tapped him for the District of Columbia Circuit Court of Appeals at the age of 36. But he encountered his first setback when the bid died in the Senate with Bill Clinton's victory. Then George W. Bush tried in 2001 and finally succeeded in 2003. In the meantime, Roberts spent most of the '90s biding his time, getting rich as a corporate lawyer at Hogan & Hartson, one of Washington's largest firms, where he quickly emerged as the supreme commander of Supreme Court battles. Between his government and corporate jobs, he argued 39 cases before the high court and won 25 of them. Colleagues recall his racing around the law firm with a white legal pad, jotting down questions he might be asked and then answering them. "He had it all the time," says a former colleague and fellow Rehnquist clerk, Gregory Garre. "I don't think he brought it to the supermarket, but he would have it with him in the office, and he'd bring it home at night." Roberts would amass 300 questions and answers for a major case, then stage moot-court sessions to rehearse them. Richard Garnett clerked for Rehnquist more than a decade after Roberts. "If we heard that Roberts was going to be arguing, everybody would go down to watch because he was just so good," Garnett recalls. "It was kind of like if you heard that Tiger was going to be hitting on your home course's driving range. You'd want to go watch him." But Roberts was by no means invincible. Once, recalls C. Boyden Gray, a White House counsel in the first Bush Administration, when the Supreme Court shut Roberts out 9 to 0 in a commercial case, the clients were ranting about the result. "How could we lose 9-0?" they kept demanding. Roberts' wry brush-off response: "Because there were only nine Justices."

Meanwhile, he touched all the Republican bases but didn't slide in hard. He occasionally took part in meetings of the Federalist Society, an influential conservative legal organization based in Washington, but never got around to joining. He helped advise Governor Jeb Bush during the 2000 Florida recount but never went on TV. "Most people get places in this city with political connections, financial connections or by persistent and unstopping self-promotion," says Lazarus. "But that's not John." Even his wife's brand of political activism came with a group heterogeneously called Feminists for Life.

Jane Roberts is a lawyer who specialized in satellite-technology law and now oversees attorney training at Pillsbury Winthrop Shaw Pittman, an international firm. Married in their early 40s, the couple struggled to have children and was finally able to adopt John (Jack) and Josephine, who were born 4 1/2 months apart. "As frequently happens when you go through the adoption process, some of the efforts weren't successful, and it continued for a time," says Jane's law partner and friend Jack McKay. "But when the opportunity came along to have not just one but two children, they took both babies without blinking." Roberts is a hands-on dad who plays a mean game of Candyland and enjoys trick-or-treat duty on Halloween. "We used to have hobbies," Jane tells colleagues, "but we do kids now." They are active at Church of the Little Flower, a Catholic congregation in a well-heeled section of Bethesda, Md. Jane's volunteer efforts help promote adoption and parenting resources. But Feminists for Life hopes to see abortion end altogether, so inquisitors who can't quite guess Roberts' core beliefs on such issues are likely to examine hers for some clue.

CHEMISTRY COUNTS

By historic standards, the Rehnquist years have been collegial, but the public arguments have grown ever fiercer in recent years. Every Justice feels entitled to pen his or her own dissent or concurring opinion to every paragraph written by the majority or the minority. It drives lower courts insane. By now, the Justices may know one another too well. Not since the 1820s has the court gone so long without getting any new blood. Of course, they know Roberts as well, though it may be his knowledge of them that proves a little unsettling. He has studied each of them closely and learned their reflexes in crafting his arguments before them. "He's more prepared than any nominee in living memory to move right in and act like he's been there for a while," notes John McGinnis, a law professor at Northwestern University in Chicago. "For a while, it's going to be like having a shadow litigator up there. He's going to be very sharp at finding the weakness of their cases."

Roberts would bring other advantages as well. At 50, he would be by far the youngest member. Only Clarence Thomas, 57, would be close, while all the rest are over 65, and John Paul Stevens is 85. Not since the mid-1980s has a Justice had such young children. "Frankly, they'll help keep him nimble because you get exposed to new concepts and new ideas, like the Internet," says Carter Phillips, another veteran of the Supreme Court bar. "Whatever the big developments are going to be, his kids are going to be right there." Many of the cases confronting the court deal not with the social issues that claim all the attention of warring interest groups but with business and commercial issues of regulation and property rights and workplace rules. There his experience with business clients would give him extra credibility, and last week the corporate wing of the Republican Party was grateful that at last the court would have a Justice who could at least speak its language if not always embrace its arguments.

The burning question now, with O'Connor gone, is, How will the court rebalance? Six of the eight current Justices plus O'Connor were appointed by Republican Presidents, yet that court has restricted use of the death penalty and affirmed-- while narrowing--abortion rights, church-state separation and affirmative action. "O'Connor was accurately described as mainstream conservative in 1981," says a lawyer who has known Roberts for 20 years. "John is reasonably described as mainstream conservative today. That's not because they are the same. It's because mainstream conservatives are a little more conservative today than they were then."

In many cases decided 5 to 4 or 6 to 3, the pragmatic O'Connor was a swing vote, so how would having Roberts replace her affect the court's chemistry? He's not likely to simply take her place, says Lee Epstein, a co-author of an upcoming Supreme Court nomination history, Advice and Consent. That position goes to Justice Anthony Kennedy, the next most movable target. For now, the only label all but tattooed on Roberts' forehead simply reads, CONSERVATIVE BUT NOT AN IDEOLOGUE--which makes it impossible to know the brokering role he might assume. It is possible that Bush thinks he has found a bomb thrower with a pleasant face. But the choice could indicate where the President comes down between the two species of conservatives who have been jockeying for position on the Supreme Court-- those who remain committed to the sanctity of the institution and its traditions and those who want to blow it up.

When Roberts spoke last week of the lump in his throat whenever he climbed the marble stairs, it rang true to anyone who had ever watched him in action. And it would match the history and mystery of the court if it turned out that Roberts ultimately alienates conservatives and not those who fear any Republican appointee. Roberts may agree in spirit with those who see the past 50 years of jurisprudence as too expansive and too intrusive but respect too much the way the law is shaped to ride in and blowtorch it. He may just prove willing to conserve even opinions he faults. If that is so, then it will not be the liberals who come to wonder at George Bush's choice. --Reported by Massimo Calabresi, Michael Duffy, Viveca Novak, Eric Roston, Elaine Shannon and Mark Thompson/Washington, Kristin Kloberdanz and Maggie Sieger/Long Beach, Sonja Steptoe/Los Angeles and Nathan Thornburgh/New York

With reporting by Reported by Massimo Calabresi, MICHAEL DUFFY, Viveca Novak, Eric Rosto, Elaine Shannon, Mark Thompson/Washington, Kristin Kloberdanz/Long Beach, Maggie Sieger/Long Beach, Sonja Steptoe/Los Angeles, Nathan Thornburgh/New York