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Supreme Court hopefuls share spotlight in friendly competition

THE BALTIMORE SUN

WASHINGTON - When Mike Luttig stood up as a groomsman in John Roberts' wedding nine years ago, more than a few people could have predicted that they would someday be sharing the spotlight again.

They'd been young leaders in the Reagan and Bush administrations, and both had made deep impressions as being smart and well-disciplined. Each was the first in his family to become a lawyer, and both had clerked on the Supreme Court.

On that July day in 1996, Luttig was on his way to becoming one of the nation's most prominent federal appeals court judges. Roberts was building a record as one of the best appellate lawyers who argue before the Supreme Court.

They've worked for some of the same important people, crossed the same prestigious paths. They've been friends more than 20 years, since their days together in the Reagan administration.

Now, they find themselves competitors, standing in a spotlight that soon could shine only on one. Federal appeals court judges J. Michael Luttig and John Roberts Jr. have emerged as two of the leading contenders to take over the center seat of the U.S. Supreme Court if Chief Justice William Rehnquist should retire.

"When you talk about people being the total package, they are - both in the sense of intellect, personalities, balance," said Richard Hauser, who was deputy White House counsel under President Ronald Reagan and worked with both of them. "It's not surprising they're prominently mentioned, and in my view, deservedly so."

Luttig and Roberts, two highly respected conservative legal minds who, despite having held top jobs in two Republican administrations, still view themselves as small-town Washington outsiders. Friends and former colleagues say both are astute, unpretentious and funny - and very secure in themselves.

The two friends likely would hold to similar views as Supreme Court justices, although Roberts is harder to predict, friends and former colleagues say. Luttig has been on the Richmond, Va.-based 4th U.S. Circuit Court of Appeals for 14 years and has decided an array of cases.

Roberts, who was first nominated to the bench by President George H.W. Bush only to see his nomination die in the Senate, was again nominated in 2001 to the U.S. Court of Appeals for the D.C. Circuit and confirmed two years ago.

"They're both conservative. They'd probably agree in 90 percent of the cases," said a lawyer who knows both men.

Their family backgrounds are strikingly similar. Both of their fathers were born outside Pittsburgh, and both fathers attended the University of Pittsburgh, where both studied engineering. Luttig's father then moved to Tyler, Texas, where he worked as a petroleum engineer, met his wife and settled down. Luttig was born there 51 years ago, went to the city's public schools and attended Washington & Lee College in Virginia.

He still has close ties to Tyler, though he visits infrequently. He suffered a devastating loss in 1994, when his father was killed in a carjacking in the driveway of his Tyler home by a group of teenagers, and his mother was left for dead. Roberts flew out the week after the slaying to be with Luttig, along with many other friends.

Roberts, 50, grew up in Long Beach, Ind., where the family had moved for his father's management job at Bethlehem Steel. A high school athlete, he went to a nearby boarding school because the local parochial school didn't have a football team. He was captain, a "small but slow halfback," as he has been known to describe himself, who graduated first in his class and went off to Harvard University.

In college, both men developed their views. Luttig was active in campus affairs and the pre-law society. Roberts became interested in conservative politics after seeing - and not liking - anti-war sentiment on campus. Roberts encountered other things at Harvard for the first time, he has said, including students who made fun of the fact that he hailed from Indiana.

Luttig spent much of his young professional life at the Supreme Court. After graduating from college, he took at job in the Ford White House, but four months into it he was offered a position in the court's judicial intern program. He asked his father what to do.

"'Everything you've ever believed in is at the other end of Pennsylvania Avenue,'" Luttig has recalled his father advising him. "'If they want you to deliver the mail, you should do it.'"

Luttig worked at the court more than two years and developed a close and lasting relationship with Chief Justice Warren Burger, who encouraged him to go to law school at the University of Virginia. He later clerked for then-Judge Antonin Scalia on the District of Columbia appeals court and for Burger.

He was nominated to the bench by the elder Bush in 1991, after heading up the Justice Department's Office of Legal Counsel, where he worked on the nominations of Justices David Souter and Clarence Thomas.

As a judge, Luttig is widely considered an ardent conservative, but his record reveals his independence, as do recent analyses of his opinions by several political scientists. He has stressed, to his law clerks and in a recent speech, intellectual honesty and adherence to precedent.

He tells law clerks they will be fired if they fail to show him contradicting authority on a particular issue or tell him exactly how they view the case, even if they do not share his views. His clerks praise him as a teacher - and 40 of 42 have gone on to clerk at the Supreme Court, an unparalleled placement record.

Luttig has been highly critical of judicial activism on both sides of the ideological spectrum, in which he believes judges have decided cases based on a desired outcome instead of adhering to established law and taking that where it leads.

"At the end of the day, other than conscience, it is only analytical rigor, and the accountability that such renders possible, that can restrain a judiciary that serves for life and is at the pleasure of no one," Luttig wrote in a 2001 case.

As a result of that approach, Luttig sometimes reaches decisions that cannot be called conservative. In one recent case, for example, he departed from conservative colleagues to find that some people convicted of serious crimes had a constitutional right to get DNA evidence if it could prove their innocence.

His opinion writing is crisp and clear, and he is willing to confront colleagues - usually conservative ones - head on. He has parted ways with Judge J. Harvie Wilkinson quite vehemently in several cases, prompting criticism that Luttig can be too sharp in disagreement.

Friends and former colleagues say Roberts likely would be less aggressive in tone than Luttig if he disagreed with a colleague's views. They say his questions from the bench have been less forceful than Luttig's.

Roberts came to Washington to clerk for Chief Justice Rehnquist after graduating at the top of his class from Harvard Law School and completing a federal appeals court clerkship for Judge Henry Friendly. He has said he assumed he would head off to a law firm job in Chicago, but instead stayed to work in the Reagan administration. He would make his mark as deputy solicitor general in the first Bush administration, honing his skills as an advocate before the Supreme Court.

Groups that support abortion rights have criticized Roberts because while in the solicitor general's office, he signed a Supreme Court brief in a 1990 case urging the court to overturn Roe v. Wade. (The solicitor general's office represents the executive branch before the Supreme Court.)

Roberts left the Bush administration to work as an appellate lawyer at the Washington law firm of Hogan & Hartson, where he continued to represent clients before the Supreme Court. He has argued 39 cases and is considered among the best to appear before the high court.

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