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During a typical oral argument last week, colleague Harry Edwards fussed and fumed at the lawyers before him, while David Sentelle tossed out avu ncular one-liners in his thick Southern drawl. When he did speak f inally, he was barely audible, politely asking a question or two, but ne ver tipping his hand. To anyone watching for the first time, Roberts bar ely made an impression. Suddenly, though, a lot of people are talking about this quiet judge, who just turned 50. The fickle spotlight on possible nominees to the Suprem e Court if Chief Justice William Rehnquist departs has swung toward Robe rts, and seems to be lingering. In spite of Roberts' quiet manner, his credentials -- former Rehnquist la w clerk, deputy solicitor general, top-flight practitioner at Hogan & Ha rtson and, in the estimation of some, the finest oral advocate before th e high court in the last decade -- are speaking for him and winning fans . Add to that a brief 20-month tenure on the court that provides few tar gets for Democrats, and Roberts is emerging as a top candidate for the h igh court. "He is well in the running, and he is superb," says C Boyden Gray, partn er at Wilmer Cutler Pickering Hale and Dorr and chairman of the Committe e for Justice, which fights for President George W Bush's judicial nomi nees. "He's a great judge here, but I think we're going to lose him" to the Sup reme Court, says a fellow DC Circuit judge who asked not to be named. At a recent discussion before the local chapter of the Corporate Counsel Association, Roberts got considerable mention when a panel of Supreme Co urt experts was asked to handicap possible nominees. "I think it will be John Roberts," said Latham & Watkins partner Maureen Mahoney, who is on some lists herself. "He has the brilliance, dedicatio n and temperament to emerge as an intellectual leader of the Court," she said afterward. Getting to this point has been a long and steady climb for Roberts, who w as first nominated to the DC Circuit while he was in the Office of the Solicitor General in 1992. His nomination died, prompting Roberts to re turn to Hogan and build an esteemed and lucrative Supreme Court practice . He argued 39 cases before the Court in both the private and public sec tor, winning 25. The current President Bush nominated him again in 2001, and again Roberts languished until finally winning unanimous confirmation in 2003. His pa y cut is breathtaking: According to his financial disclosure form, Hogan paid Roberts just over $1 million in 2003, a combination of salary plus the payout representing a departing partner's ownership interest in the firm. As an appeals court judge, Roberts makes $171,800 a year. ON THE SHORT LIST With all the recent talk, Roberts has joined 4th Circuit Judges J Michae l Luttig and J Harvie Wilkinson III and 10th Circuit Judge Michael McCo nnell on the short list of those who might get the nod, especially if Pr esident Bush replaces Rehnquist as chief justice with Antonin Scalia or Clarence Thomas. But there is one way in which Roberts stands apart from -- and possibly a head of -- the others. Luttig, with 13 years on the 4th Circuit, and Wil kinson with 20 have written enough opinions that it is easy to chart how conservative they are. McConnell has only two years on the 10th Circuit , but he has a provocative paper trail from his 17 years as a prolific c onservative law school professor. By contrast, Roberts, with 20 months on the DC Circuit, has few opinion s or other writings that have attracted enemies. As a result, some conse rvatives have made unflattering comparisons between Roberts and Supreme Court Justice David Souter, whose short stint on the 1st Circuit before being appointed in 1990 by President George HW Bush failed to reveal S outer's moderate-to-liberal leanings on some issues. Yet those who know Roberts say he, unlike Souter, is a reliable conservat ive who can be counted on to undermine if not immediately overturn liber al landmarks like abortion rights and affirmative action. Indicators of his true stripes cited by friends include: clerking for Rehnquist, membe rship in the Federalist Society, laboring in the Ronald Reagan White Hou se counsel's office and at the Justice Department into the Bush years, w orking with Kenneth Starr among others, and even his lunchtime conversat ions at Hogan & Hartson. "He is as conservative as you can get," one fri end puts it. In short, Roberts may combine the stealth appeal of Souter with the unwavering ideology of Scalia and Thomas. But this take on Roberts puts some of his biggest boosters in a quandary. They praise Roberts as a brilliant, fair-minded lawyer with a perfect j udicial temperament. But can that image as an open-minded jurist co-exis t with also being viewed as a predictable conservative? Florida personal injury lawyer Dean Colson of Colson Hicks Eidson in Cora l Gables, who has known Roberts since they clerked for Rehnquist togethe r in 1980, side-steps the question. Colson calls Roberts "the smartest lawyer in America," someone who will " approach the cases with an intellectual viewpoint. But does that mean conservatives can't count on Roberts? "I don't know th e answer as to how he would vote on specific issues," says Colson. "I wo uld never ask him, and I hope he never tells anybody what he would do." Mark Levin, author of "Men in Black," a new conservative critique of the Supreme Court, sees no conflict and is a fan of Roberts. "In the short p eriod he has been on the court, John Roberts has shown he does not bring a personal agenda to his work. "He respects the Court greatly, and would not ignore precedent," says Pre ttyman. "But if there's a loophole or a distinguishing factor, he'd find it." Roberts himself declined to comment for this story, but during his Januar y 2003 Senate confirmation hearing, he made it clear that he prefers imp artiality over predictability. For example, he criticized the press for identifying judges according to whether they were appointed by Democrati c or Republican presidents. "That gives so little credit to the work that they put into the case," he said. "They work very hard, and all of a sudden the report is, well, th ey just decided that way because of politics. NOT ALWAYS PREDICTABLE So far on the DC Circuit, Roberts' votes have mainly fallen on the cons ervative side, but not always. Last December, in United States v Mellen, Roberts ruled in favor of a cr iminal defendant who challenged his sentence in a fraud case. Judge Kare n LeCraft Henderson -- yes, an appointee of the first President Bush -- dissented. In the July 2004 decision Barbour v Washington Metropolitan Area Transit Authority (WMATA), Roberts joined Merrick Garland -- a Clinton appointe e -- in deciding that sovereign immunity did not bar a DC employee with bipolar disorder from suing the transit agency under federal laws barri ng discrimination against the disabled. But then there was another WMATA case -- known as the french fry case -- which some critics point to as a sign of a certain hard-heartedness in R oberts' decision making. In the unanimous ruling last October in Hedgepeth v WMATA, Roberts uphel d the arrest, handcuffing and detention of a 12-year-old girl for eating a single french fry inside a DC Metrorail station. "No one is very ha ppy about the events that led to this litigation," Roberts acknowledged in the decision, but he ruled that nothing the police did violated the g irl's Fourth Amendment or Fifth Amendment rights. Roberts also displayed what some viewed as insouciance toward arroyo toad s in a 2003 case, Rancho Viejo v Norton. Roberts wanted the full DC C ircuit to reconsider a panel's decision that upheld a Fish and Wildlife Service regulation protecting the toads under the Endangered Species Act . Roberts said there could be no interstate commerce rationale for prote cting the toad, which, he said, "for reasons of its own lives its entire life in California." In another decision last June, Roberts went even further than his colleag ues in supporting the Bush administration in a case that pitted the gove rnment against veterans of the first Gulf War. American soldiers ca...
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