John Roberts Jr., President Bush’s Supreme Court nominee, has shown himself to be media-savvy throughout his career. As an attorney, his client list included News Corp. and NBC. He also dealt with media issues as deputy solicitor general in the Justice Department and as a federal appeals court judge.
In 2002, while a lawyer in the private sector for more than 14 years, Mr. Roberts argued a case in a federal appeals court that cleared the way for Rupert Murdoch to simultaneously own The New York Post and two major broadcast stations in New York, the nation’s largest market.
The situation arose after News Corp. acquired 10 TV stations from Chris-Craft Industries and received a two-year waiver from the Federal Communications Commission from the agency’s cross-ownership rules, which bars owners of daily newspapers from buying TV stations in their markets. The United Church of Christ challenged the FCC’s decision and appealed, arguing that the agency had failed to present the necessary public interest rationale.
Under fire in the appeals courtroom, the lawyer for the FCC was unable to persuade the judges that the public interest case had been made, according to an eyewitness.
That’s when Mr. Roberts, then an attorney with the law firm Hogan & Hartson, stepped forward on News Corp.’s behalf. He dredged up an arcane precedent from an old radio industry case that held that the information supplied in a standard FCC transfer application form provided sufficient information for a public interest case to be made.
“His oral argument saved the day for the FCC,” said Andrew Schwartzman, president of the Media Access Project, who was in the courtroom. News Corp. retains the waiver to this day.
In his more than 10 years at Hogan & Hartson, Mr. Roberts also represented NBC, working on a legal brief for the 2002 case in which the U.S. Court of Appeals in Washington threw out the FCC’s broadcast-cable cross-ownership rules and seriously undermined the legal justification for agency regulations establishing a cap on national TV station ownership. The court ruling also undermined a regulation prohibiting owners of daily newspapers from buying broadcast stations in their markets.
Judge Roberts has also been an investor in the media sector. In his federal financial disclosure form filed last year, he disclosed that he invested heavily in media and telecommunications firms. He had stock valued at more than $100,000 in Time Warner (a client of Hogan & Hartson), Microsoft and Intel, along with smaller positions in The Walt Disney Co., Cisco Systems and Scientific-Atlanta. (According to the disclosure form, he held Comcast stock and sold it in 2003.)
Mr. Roberts is a judge on the same appeals court in which he saved Mr. Murdoch’s bacon.
Spokespeople for several watchdog groups said the fact that Mr. Roberts once represented News Corp. and NBC in no way disqualifies him to serve on the Supreme Court.
“He is among the half-dozen best qualified in the country [to serve on the Supreme Court],” said Media Access Project’s Mr. Schwartzman.
But others say his record sets off enough alarms about his attitude toward media consolidation and other critical media issues that some groups will urge lawmakers to confront him about during Senate confirmation hearings, which are expected to start in September.
“The Roberts-Murdoch connection needs to be better understood,” said Jeff Chester, executive director of the Center for Digital Democracy. “One of the key questions is whether Roberts will have to recuse himself from media issues.”
Said a News Corp. source, in response: “[Mr. Roberts] worked for us once, as just about every lawyer in Washington has worked for us.”
Despite the best efforts of liberal critics to paint Mr. Roberts as a conservative, supporters note that he served as a behind-the-scenes adviser on a case involving Playboy in 2000 while at Hogan & Hartson.
In that case the Supreme Court struck down an effort by the federal government to prohibit cable operators from offering partly scrambled adult programming between the hours of 6 a.m. and 10 p.m.
The court majority, in a 5-4 decision, ruled that the fact that cable TV companies could block sex channels for concerned customers mitigated the need for a stronger remedy.
At the same time, according to People for the American Way, when Mr. Roberts was solicitor general for the Department of Justice in 1990, he co-wrote the government’s brief in U.S. v. Eichman, arguing that a law prohibiting flag burning was constitutional. The Supreme Court, in a 5-4 ruling, disagreed.
In the one media industry-related case he has written as an appeals court judge, Mr. Roberts in 2003 upheld an FCC decision requiring TV set manufacturers to include digital TV tuners in sets as an important component of the DTV transition.
Those who know him describe Mr. Roberts as a brilliant lawyer-one who has carefully kept many of his private opinions close to the vest.
“Most people assume he’s conservative, but it’s not based on anything he’s said,” said Bob Corn-Revere, a former Hogan & Hartson attorney who said he has known Mr. Roberts for 20 years. “He’s never worn any ideological outlook on his sleeve.”
“He’s a humble guy who is always the smartest guy in the room, and it’s rare to find that combination,” added an industry admirer, who asked not to be identified.
In addition, Mr. Corn-Revere said the media-related cases that Mr. Roberts worked on for Hogan & Hartson hadn’t involved “hot-button” issues that would create a controversy about his qualifications for the high-court job.
“They’re really about statutory interpretation and agency discretion,” Mr. Corn-Revere said.
Still, the Center for Digital Democracy’s Mr. Chester said it is critical that the public ferret out where Mr. Roberts stands on consolidation and other important industry issues.
John Glover Roberts Jr.
Mr. Roberts (born Jan. 27, 1955) is a graduate of Harvard Law School. He served from 1980-81 as a clerk to U.S. Supreme Court Chief Justice William Rehnquist and was an associate counsel at the White House from 1982-86.
Mr. Roberts came to the law firm Hogan & Hartson in 1986, leaving in 1989 to become deputy solicitor general for the Department of Justice. In 1993 he returned to Hogan & Hartson and stayed there until 2003, when he became a judge on the U.S. Court of Appeals in Washington.
According to the watchdog Center for Investigative Reporting, Mr. Roberts served as a lobbyist for peanut growers in 1996-97 while at Hogan & Hartson.