Topic: Health Insurance
Senator: Durbin
Date: SEPTEMBER 15, 2005
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DURBIN: If I could, I'd like to return to a discussion that we had yesterday about a very fundamental question. I asked you yesterday about a case that you handled as an attorney involving a large HMO, in which you advanced a very narrow reading of an Illinois state law.
Had your position prevailed, millions of American families stood the risk of losing coverage for their health insurance. You did not prevail, and as you mentioned, a closely divided court -- which again underlines the importance of each new justice as we consider them -- but your position did not prevail.
Let me read what you said to me in response. You said you'd told me you had no reservations about taking the case. And here's what you said, quote, "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," end of quote.
I want to follow up on this. You have taken some pride in the pro bono cases that you have taken, and I'm glad you have. I think that is part of being a professional, accepting pro bono cases.
You were asked the other day about your participation in the 1996 case of Roemer v. Evans, a landmark case that struck down a Colorado law that would have taken away the rights of gay and lesbian Americans. You gave some legal advice to the lawyer in this case who was trying to uphold the rights of those with different sexual orientation.
So I'll ask you, if the other side had come to you first and said, "Mr. Roberts, we would like you to defend this state amendment that took away the rights of gays and lesbians," would you have taken the case?
ROBERTS: It's a hypothetical question.
Of course, I think I probably would have, Senator. I actually have done pro bono assistance for states on a regular basis through the National Association of Attorneys General. And, if I'm remembering right, the state would have been the other party in that case -- I think that's right.
And, through the state and local legal center, I've participated in moot courts with the states on a regular basis.
And a big part of my practice was representing states. So, if a state -- in that case, Colorado -- had come to me and said, "We have a case in the Supreme Court; would you defend it?" I might -- again, I can't answer without knowing the full details and all that, and I'd have to look at the legal issues. And I would not, and never have, presented legal arguments that I thought were not reasonable arguments. It doesn't necessarily mean they're going to prevail, and I've certainly lost my share of cases.
But it is not been my general view that I sit in judgment on clients when they come to me. I viewed that as the job of the court when I was a lawyer. And just as someone once said, you know, it's the guilty people who really need a good lawyer.
I also view that I don't evaluate whether I as a judge would agree with the particular position when somebody comes to me for what I did, which was provide legal advice and assistance, particularly before the Supreme Court.
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