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Lawyers: High court nominee an enigma on environment

Amanda Fehd

President Bush’s nominee for the U.S. Supreme Court is highly regarded among those who worked with him on a Tahoe case which pitted property rights against environmental protection.

However, some believe his position on the environment remains unclear and would better be determined by examining his rulings as a judge.

As a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Roberts issued a dissent in a case involving the constitutionality of the Endangered Species Act.

The case of the arroyo toads involved a real estate developer’s challenge to a regulation under the Endangered Species Act. It required removal of a fence that interfered with the habitat of the endangered species. The developer said the regulation exceeded Congress’authority under the Constitution’s commerce clause.

Lawyers and staff for the Tahoe Regional Planning Agency said John Roberts, 50, was modest and easygoing, with an extraordinary intellect.

“I never got the sense from him that I was dealing with someone who was reactionary or an ideologue,” said John Marshall, who was lead attorney at the TRPA at the time.

Other staff agreed.

“He really impressed not only myself but the rest of our staff with a tremendous ability to grasp the nuances of the case – which had been going on at the time for (18) years – and our rules and regulations,” said Jordan Kahn, assistant attorney at the TRPA.

“He was a very soft-spoken, humble, modest individual,” Kahn said.

But some expressed doubt that Roberts’ participation in what some called a landmark environmental case is an indication of how he feels personally about the environment.

“He was a nominee at the time, so for him to look green was a good thing,” Marshall said. The case was one of the last Roberts would argue as a private lawyer before becoming a judge on the D.C. Circuit.

Fran Layton is outside counsel for the TRPA with Shute, Mihaly & Weinberger in San Francisco. While praising his ability as a lawyer, she said “I don’t think the fact that he argued the TRPA case tells us that John Roberts is an environmental advocate.”

Marshall could not say where Roberts stood on the environment, only that he effectively argued the TRPA’s case.

“The reason I wanted him on the case was because he was not either hyper environmental or hyper property rights,” Marshall said.

“He seems contemplative about things, if that’s a characteristic you want in a judge, I think one would get that from him,” Marshall said.

Roberts was hand-picked by Marshall to help the TRPA fight a battle with a group of 400 lakefront landowners over a temporary development moratorium in the 1980’s which resulted in an 18-year battle in the courts.

Michael Berger of Manatt, Phelps & Phillips in Los Angeles, argued for the landowners in the case.

“Handling cases in the Supreme Court is what he loved to do,” Berger said. “I got the strong feeling that he would take any representation that would get him back in the Supreme Court. I don’t believe necessarily what a lawyer says representing a client is what he believes personally anyway.”

Roberts has argued 39 cases before the high court.

– The Associated Press contributed to this report.


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