lobbying

The petro-giants are touting their new sensitivity to global warming. They’re also spending huge amounts of money to defeat anti-warming legislation.

To hear the captains of the oil industry speak these days, you’d think the petro-giants are leading the charge against climate change.

At a recent energy conference in Houston, the CEOs of both Chevron and ExxonMobil pledged to combat global warming. Chevron boss David J. O'Reilly called for national regulation of carbon dioxide fumes, while Exxon honcho Rex Tillerson said, “We know our climate is changing, the average temperature of the earth is rising, and greenhouse gas emissions are increasing.” He later added: “Our industry has a responsibility to contribute to policy discussions on these important issues – and to take concrete actions ourselves to reduce emissions.”

Chevron has rolled out a four-part plan to address global warming, and set up an environmentally focused website that states, “One of the most critical environmental challenges facing the world today is reducing long-term growth in greenhouse gas (GHG) emissions,” and goes on to blame fossil fuels for those emissions.

While the industry is publicly playing up its concern about rising temperatures, major oil business players are doing their best to scuttle laws intended to stop global warming. An analysis of recent lobbying and campaign spending by the Center for Investigative Reporting found during 2005 and 2006 oil companies spent roughly $100 million trying to kill green legislation in California alone.

The oil industry, led by Chevron and ExxonMobil, lobbied vigorously against AB 32, the state’s precedent-setting anti-warming bill, which was signed into law by Governor Arnold Schwarzenegger last winter. Although state disclosure forms don’t pinpoint precisely how much money the firms spent trying to derail the bill – or exactly how they spent the money -- the documents show the petroleum industry and its trade associations devoted more than $11.5 million to lobbying while the bill was under consideration.

Oil firms also poured more than $94 million into defeating Proposition 87, a ballot measure that would’ve taxed petroleum and funneled the money into an array of alternative energy initiatives, funding research into renewable fuel technology, and providing financial incentives for consumers to purchase hybrid autos.

Paul Vercruyssen of Sacramento’s Center for Energy Efficiency and Renewable Technologies, a nonprofit pushing for clean energy legislation, says the industry’s behind-the-scenes actions contradict its new public stance on warming. “The reality in the halls of the legislature and in the state agencies is that they’re not following through on the image they put out,” comments Vercruyssen. The oil firms, he adds, “have to be dragged kicking and screaming to do anything” about climate change.

A landmark of 21st century eco-legislation, AB 32, titled the Global Warming Solutions Act of 2006, is the first American law at either the state or national level to place a firm cap on greenhouse gas pollutants. The law, which limits greenhouse emissions from oil refineries, power plants, and factories, promises to pull emissions back down to 1990 levels by 2020.

Since Governor Schwarzenegger, a Republican, signed the bill, the national media has hailed the former action movie star as an environmental hero, with glossy magazines like Outside and Wired praising him as a visionary.

But if the oil industry had gotten its way, AB 32 would’ve died a quiet death.

Assembly Speaker Fabian Núñez, who co-wrote the bill with then-assembly member Fran Pavley, says Big Oil exerted heavy pressure on legislators, encouraging them to water down or bury AB 32. The industry mounted “fierce opposition,” recalls Núñez, a Democrat. “They had a well thought-out, very intense campaign to kill the bill every step of the way. They concentrated their resources on the legislature. ...They were trying to get at people from as many different angles as possible.”

Núñez’s contention is backed up by lobbying reports on file with the California Secretary of State. Those records don’t show precisely how much each company spent trying to modify or scuttle AB 32, but they do show that the world’s biggest oil companies lobbied on the bill, and that they poured millions of dollars into lobbying efforts during the months lawmakers were debating the merits of AB 32. Big spenders include ExxonMobil ($280,921); Shell ($1,182,717); Chevron ($1,832,467); and an industry trade group, the Western States Petroleum Association ($6,712,215).

Additionally, Chevron funneled hundreds of thousands of dollars to business associations that lobbied against AB 32, giving $100,000 to the California Chamber of Commerce, and $329,000 to a San Francisco-based lobbying group called the California Council for Environmental and Economic Balance (CCEEB).

Letters obtained by CIR detail the industry’s position. In a June 2006 letter to legislators, CCEEB urges politicians to oppose the bill, describing the regulations as “neither reasonable nor cost-effective.” “We believe that if AB 32 is implemented it could set back California’s constructive efforts to address climate change,” continues the letter, which argues for more study of the potential costs of the anti-warming law, and advocates for voluntary – rather than mandatory – reductions in greenhouse fumes.

The Western States Petroleum Association, a lobby supported by oil firms doing business in California and five other states, made an even more dramatic case against the bill. “We estimate a potential loss of 17 percent of fuel production, equivalent to the loss of three average sized California refineries,” wrote an association spokesman in an April 2006 letter sent to legislators in both houses. According to the trade group, “AB 32 could lead to mandated shortages of transportation fuels in California making California more uncompetitive.”

At the Natural Resources Defense Council, a nonprofit environmental group, Devra Wang followed the statehouse wrangling closely. “They were simply telling folks to vote no, saying ‘It’s going to cause us to ration gas. It’s going to bring down the economy. It’s going to force us to flee the state,’” says Wang, director of the organization’s California energy program. “They lobbied pretty hard. They made it a top priority.”

However, she notes, the oil firms “didn’t do a very public campaign. I think that’s because the public wants to see action on global warming.”

Tupper Hull, director of strategic communications for the petroleum association, says the oil companies he represents have a philosophical problem with AB 32, because the law employs a “command and control, top-down, regulatory approach. Business doesn’t care for those methods.”

Despite the industry’s disdain for anti-warming regulation, Hull says the oil business is intent on developing carbon-neutral energy sources. “Someone would have to live in a cave not to be aware of the tremendous focus on this issue and the billions of dollars that the industry is pouring into the development of alternative fuels,” he comments.

One thing that Hull and Wang can agree on is the fact that the major oil firms don’t speak with a single voice. Wang credits London-based oil producer BP, which is in the process of creating a $500 million renewable energy research center with the University of California, with taking a helpful approach to AB 32. “BP was generally engaged in a good-faith effort,” she notes. “From my experience they were the only oil company that engaged in a constructive dialogue.” The company has since joined with Alcoa, DuPont, Caterpillar, Duke Energy, and other corporate heavyweights to champion mandatory curbs on carbon dioxide and other heat-trapping gases.

Chevron spokesman Alex Yelland says the company (which pocketed a record $17.1 billion in profits last year) fears a patchwork of state anti-warming laws will raise costs for the company and consumers. “We do not support a state-by-state approach,” Yelland tells us, adding that Chevron is pushing for a “national framework” for dealing with climate change. Any nationwide rules, argues Yelland, should be “flexible” and allow oil companies to pocket a reasonable profit.

Speaking of profits, Chevron last year dumped a decent chunk of its earnings into defeating Proposition 87, a 2006 California ballot measure that would have levied a per-barrel tax on oil and piped the money into a fund for developing renewable energy sources. Campaign records show Chevron spent a staggering $38 million to defeat the measure, which was bankrolled by Hollywood film producer Steve Bing.

Not surprisingly, they weren’t the only ones spending big money to stop Proposition 87: Aera Energy, a joint venture of ExxonMobil and Shell, pumped $32.8 million into the No on 87 effort, while BP and ConocoPhillips contributed about $3 million each.

The petroleum association’s Hull says Proposition 87 “was bad public policy and the voters rejected it. It made no sense to penalize the production of oil within the state of California.”

In total, oil industry spending tallied more than $94.1 million – providing nearly 100 percent of the funding for the No campaign, which blanketed TV, radio, and print publications with ads in the weeks leading up to the election. On the other side, the pro-87 crowd blew more than $61.2 million. The combined spending frenzy made Proposition 87 the most costly ballot measure skirmish in California history.

“It was just ridiculous,” recalls Vercruyssen of the Center for Energy Efficiency and Renewable Technologies. The oil companies, he says, had a practically “bottomless pit of money and they were going to spend whatever it took” to choke Proposition 87.

5 minute radio feature on lobbying campaign by auto and oil interests to defeat California's zero emission mandate.

Last year the Senate rejected former mining and cattle lobbyist William Myers for the Court of Appeals. Now Bush is trying again -- and this time Myers' business pals are waging a multimillion-dollar campaign for him.

Last year, when the Senate considered William G. Myers III for the U.S. Court of Appeals for the 9th Circuit, Democrats blocked his nomination with a filibuster after questions arose about his work as a lobbyist for mining and cattle interests. Sen. Charles Schumer, D-N.Y., described Myers' environmental record as being "off the deep end," and environmental and Native American groups opposed Myers for his criticism of laws such as the Endangered Species Act and his alleged disrespect for Indian lands and rights. On Tuesday, Myers' nomination goes back before the Senate Judiciary Committee, the opening battle in Washington's on-again partisan wars over President Bush's judicial nominees. This time around, Myers has the full support of his friends in industry.

On Feb. 14 Bush renominated Myers and 19 other unsuccessful judicial candidates, seven of whom were blocked by Democrats in the last Congress, hoping that the four-seat Republican gain in the 2004 election would help push the nominees through. Myers is the test case. If Myers' nomination is blocked again, the GOP leadership might resort to what is known as the "nuclear option," whereby it would try to change the Senate's procedural rules and ban filibusters. Senate Judiciary Committee chairman Arlen Specter, R-Pa., apparently believes that Myers has a good chance of reaching the 60 votes that would ensure a filibuster-proof Senate. Two Democrats voted with Republicans to try to end the first filibuster of Myers, and Colorado's new Democratic senator, Ken Salazar, whose state went for Bush in 2004 and has big mining and cattle interests, has indicated he might vote for Myers.

To help Myers and the rest of Bush's nominees get those votes in the Senate, Myers' former clients in the National Association of Manufacturers plan to wage a multimillion-dollar campaign. The manufacturers hope to provide the critical boost the Republicans need by employing television advertising and grass-roots lobbying to pressure moderate or red-state Democratic senators to help prevent any filibusters. A spokesperson for the business group says that securing approval of Bush's appellate court nominees is now its top priority. This unparalleled effort by big business to influence the judiciary by promoting nominees such as Myers who owe a great deal to the industry lobby raises potential conflict-of-interest questions and poses a new threat to the traditional independence of the judicial branch. And if the Democrats manage to filibuster Myers' nomination again, the pressure on them by outside groups like NAM is only likely to increase.

NAM, the principal lobbying group representing U.S. companies, from multinationals to small manufacturers, is campaigning for Bush's nominees because it believes that the biggest problem facing manufacturing in its race to compete in the global marketplace is non-production costs like tort litigation and regulatory compliance. It presumes that most of Bush's nominees, if approved, would be inclined to stop what it considers frivolous lawsuits, whose costly litigation and awards, it says, are a drag on economic development and discourage job growth and risk taking. NAM president and CEO John Engler, a Republican and a longtime friend of Bush's, says the NAM wants a "fair, impartial and predictable legal system," with fewer delays and appeals.
To accomplish its goals on the national stage, NAM is promoting the package of litigation legislation endorsed by the White House, including the bill to curtail class-action lawsuits signed by the president on Feb. 18 (which will increase federal jurisdiction over such suits), as well as coming bills on asbestos litigation and medical malpractice, which aim to put caps on financial awards to those claiming damages. On the state level, NAM is backing sympathetic political and judicial candidates and trying to sway voters on the issues of frivolous lawsuits and costly verdicts. But NAM also has recognized that much of judges' work concerns commercial and economic matters, and says that the confirmation of federal judges sympathetic to its goals is a "matter of utmost importance." According to Engler, NAM's membership believes that it is vital to confirm judges who "get it right" to replace those who "are negating the work of elected officials in the executive and legislative branches."

NAM's interest in judicial selection parallels the emergence of the courts as a principal battleground on the issue of government regulation. Business is no longer interested simply in educating judges to be more sympathetic to the cost of regulation on commerce but in selecting those already familiar with business through their prior connections. A study conducted by the Center for Investigative Reporting of all of Bush's appellate court nominees in his first term revealed that a significant number had close ties to the energy and mining industries as lobbyists or counsel and that many, like Myers, were nominated for federal judicial districts where battles over natural resources are frequently fought in the courts.

NAM's assessment of the importance of judicial selection was recently validated by an unlikely source. A study released last October by the Environmental Law Institute concluded that a federal judge's political affiliation is a decisive factor in how he or she will rule on key environmental cases. It found that there is a wide gulf in the positions taken by appointees of Democratic and Republican presidents in environmental suits.

NAM's lobbying campaign will focus on politically vulnerable or receptive Democratic senators. Five of the 16 Democrats up for reelection in 2006 come from states that went for Bush in last year's election, and two of those previously voted with Republicans to stop some of the judicial filibusters in Bush's first term. (One, Nebraska's Sen. Ben Nelson, voted to end the filibuster against Myers.) All these senators are undoubtedly aware that fellow Democratic Sen. Tom Daschle's support for the filibusters, particularly that of Myers -- who is seen as a friend to agriculture because of his cattle industry connections -- was an issue in his losing South Dakota campaign last year. His opponent John Thune, who ultimately defeated Daschle, charged that in voting on judicial nominations, Daschle had sided with liberal extremists against the state's farmers and ranchers.

NAM's rallying of corporate muscle around judicial nominations is not unprecedented. In 2002, C. Boyden Gray, counsel to the first President Bush from 1989 to 1993, established the Committee for Justice and a companion foundation and ran a grass-roots and ad campaign similar to that planned by NAM concerning blocked judicial nominees. The committee lists on its Web site the Democrats who have sometimes voted with Republicans to stop a judicial filibuster, along with the Democrats it considers the chief barriers to confirmation. The group credits its television ads with helping to defeat Texas Democratic senatorial candidate Ron Kirk in 2002 over his stand opposing Bush's nominees. Business groups and Republican supporters have donated tens of thousands of tax-exempt dollars to the committee's foundation. And one of the committee's members is Engler, a former Michigan governor and now NAM's chief executive.

Myers has never served on the bench. He was the Department of Interior's top lawyer in 2001-03 and is currently a lawyer in Idaho with the same firm that employed him as a lobbyist for mining interests. He ran into organized opposition to his first nomination from environmental and Native American groups for actions he took at the Interior Department and as a lobbyist in the 1990s for the cattle and mining industries, which are major Republican donors. This time he will benefit from the membership on NAM's executive committee of the president and CEO of Arch Coal. Myers' lobbying of Congress in 2000 helped pave the way for Arch's recent expansion of its federal coal leases despite the opposition of federal regulators and six state attorneys generals who considered the increase potentially anticompetitive and harmful to consumers.

One example of the potential negative impact that judges' rulings favorable to business can have on consumers is a case highlighted last April in Salon. Representing Arch Coal and two other major coal producers, Myers helped push through the Coal Market Competition Act of 2000, which allowed the producers to expand their federal coal lease holdings. The Federal Trade Commission subsequently challenged a consolidation of Wyoming coal producers allowed under the new law, and was soon joined by attorneys general from six states that rely on power from plants fueled by Wyoming coal. They argued that combining the substantial federal coal leases would make anticompetitive coordination among the remaining Wyoming coal producers more likely and thus hurt consumers by increasing their electric utility costs.

"If allowed to go through, this merger would combine two of only four major producers of Powder River Basin coal," Missouri attorney general Jay Nixon warned. But last August a U.S. district court judge nominated by President Bush denied the FTC's request for a preliminary injunction, and the U.S. Court of Appeals for the District of Columbia Circuit then declined to issue a stay pending an appeal.

At the end of January, prior to organizing its initiative on federal judges, NAM launched the American Justice Partnership to push for legal changes in state courts and influence the selection of state judges and politicians. Its success with state judicial campaigns is what helped persuade the NAM's Engler to develop a federal judicial strategy. Engler told a National Press Club audience on Feb. 10 that his interest in influencing the selection of federal judges came from his "assessment back in Michigan of how important the legal climate can be to a state and to a business climate, and therefore extrapolating that to the nation."

Legal experts and the public have sharply criticized the growing involvement of special interests in state judicial elections. A 2003 poll for the New York state court system indicated "an alarming 83 percent of New York voters believe that campaign contributions have some or a great deal of influence on judges' decisions." Survey respondents also believed that political party leaders, campaign contributors and special-interest groups have the most influence over who becomes a judge. And Supreme Court Justices Anthony Kennedy and Stephen Breyer have voiced their concern about the trend that has leading business and Democratic supporters such as trial lawyers and unions pouring millions of dollars into state judicial races.

Underlining the worries about mixing justice with special interests, a committee headed by Breyer is reviewing the status of federal judicial ethics as provided for in a 1980 law that permits anyone to file a complaint alleging a federal judge has engaged in misconduct. But the committee's report is not expected for several years.

Meanwhile, while waiting for his judicial fate to be decided, Myers practices law in Boise for Holland & Hart, which calls itself the largest law firm in the Rocky Mountain West. Its Web site touts its roster of nearly 300 lawyers, 49 of whom were selected for inclusion in the latest edition of "The Best Lawyers in America," the "definitive guide to legal excellence in the United States." Myers' name, however, is not among them.

About the writer: Dan Noyes is a reporter at the Center for Investigative Reporting. The Open Society Institute supports the center's reporting on the federal judiciary.

On Tuesday, July 19, 2005, President Bush nominated John G. Roberts, Jr., to the Supreme Court. As part of its ongoing investigation into Bush’s federal court nominees, CIR has made Roberts’ 2003 financial disclosure statement and Senate confirmation questionnaire freely and easily accessible to the public on the Courting Influence web site.

During Bush’s first term, our investigation focused on the administration’s 59 judicial nominees to federal courts of appeals and the U.S. Court of Federal Claims, which hears major property rights claims and land disputes. This reporting revealed that more than a third of President Bush’s nominees to these federal courts -- including Roberts -- has a history of working as lawyers and lobbyists on behalf of the oil, gas and energy industries.

In a 2004 article on www.CourtingInfluence.net, “Former Energy Industry Lobbyists Among Nominees,” CIR recounts Roberts’ experience supporting the mining industry:

“Another Bush judicial appointee with experience representing the mining industry is John G. Roberts, Jr., a former colleague of George Miller's at the Hogan & Hartson law and lobbying firm. Roberts was one of the co-authors of Miller’s amicus brief on behalf of the National Mining Association’s challenge to the government ban on ‘mountaintop removal’. In 2003, Roberts was confirmed to the powerful D.C. Circuit Court of Appeals, where earlier this year he ruled against environmentalists who were pushing for more restrictive government regulations of copper smelters--many of whom are members of the National Mining Association that Roberts once represented. As a lobbyist in the 1990s, Roberts worked on behalf of the peanut industry, pushing federal legislation that maintained government subsidies which the GAO estimated cost consumers $500 million a year. Agricultural and mining interests are often involved in regulatory cases that come before the DC Circuit Court where Roberts now sits.”

"I have no platform," said Chief Justice-designate John Roberts to members of the Senate Judiciary Committee when hearings convened Monday on Capitol Hill. "I come before the committee with no agenda."

But what Roberts does bring before the committee is a long list of ties to corporate America from his years of working as a lobbyist and an attorney in Washington on behalf of business and special interest groups. He also gives the Judiciary Committee a golden opportunity to shed light on a thorny but still largely ill-defined issue: how Supreme Court justices should contend with potential conflicts of interest, including whether they should recuse themselves from a case.

Within minutes of the White House announcement of Roberts' nomination in July, U.S. Chamber of Commerce president Thomas J. Donohue praised him as "highly regarded and well-respected by the legal and business communities." On its Web site, the National Association of Manufacturers prominently features a photo of Roberts (along with a new blog on judicial nominations), accompanied by the headline "The Business Case for Supreme Court Chief Justice Nominee John Roberts."

Roberts is the beneficiary of the organization's first-ever lobbying campaign for a Supreme Court nominee. Two members of its executive committee represent corporate interests that Roberts himself represented as an attorney: Toyota and the coal mining industry.

As the Senate deliberates whether Roberts should lead the nation's highest bench for what may be decades to come, the issue of judicial conflict of interest is relevant like never before. With respect to corporate America, Roberts' career and financial-investment profile stand out among sitting judges: His 2005 financial-disclosure form lists 78 stock holdings, which range from high-tech to healthcare, to mass media and corporate real estate. His net worth has been listed at roughly $5.3 million, and his earnings at law firm Hogan & Hartson were more than a million dollars in 2003.

It's difficult to predict what cases will come before the court in the coming years, but Roberts' personal investments in numerous top companies across a variety of industries make him a prime candidate for appearances of impropriety. Companies whose stock he owns in the high-tech and telecom sectors include Dell Computer, Microsoft, Texas Instruments, Intel, Agilent, Cisco, Novellus, Hewlett-Packard, Lucent and Nokia. In healthcare: Pfizer, Merck, Johnson & Johnson, AstraZeneca, Hillenbrand, and Becton, Dickinson. In big media: Time Warner, Disney and Blockbuster. In finance and real estate: Citigroup, State Street and Washington REIT. (Experts will presumably advise Roberts to avoid recusals related to his extensive stock holdings by placing his assets in a blind trust.)

Specifically, Roberts' Pfizer stock presents a potential conflict with an upcoming high-court case for which the drug giant has filed a friend-of-the-court brief. Meanwhile, his work for Chrysler and Toyota could be a conflict in an upcoming case involving the National Automobile Dealers Association, while a mining company has a case on the docket with potentially significant implications for the industry -- another for which Roberts worked. Such cases, with industry-wide implications, may explain why the National Association of Manufacturers' head, John Engler, has asserted that Roberts is a jurist who "get[s] it right."

Roberts' mentor, the late Chief Justice William Rehnquist, expressed in 2000 his widely held but stringent take on one facet of the matter: "[A] judge should recuse himself whether he holds one share or a thousand shares of stock in a corporation that is party in a case before his court."

But that may be just the beginning of the issue. Rehnquist's approach, which is based in federal law, lets judges avoid grappling with messier potential conflicts -- including, in Roberts' case, those involving business clients that helped him finance his investment portfolio.

Beyond his stock holdings, some of the corporate clients Roberts represented while in private practice at Hogan & Hartson, where he was a partner for 12 of his 13 years, could also present the appearance of impropriety if Roberts were to rule on a high-court case involving them. They include Fox Television, Digital Equipment, Peabody Coal and the National Mining Association, Litton Industries, Rush Prudential HMO, Toyota, Chrysler and NBC. In addition, Roberts lobbied successfully for the peanut industry in 1996 and 1997 to keep huge federal peanut farming subsidies intact; he was a registered lobbyist for the Cosmetic, Toiletry and Fragrance Association; and he represented the cattle industry.

As chief justice Roberts may also run into conflicts of interest with a former colleague from Hogan & Hartson, Gregory G. Garre, who worked with Roberts for years and succeeded him as head of the firm's Supreme Court and appellate practice. Garre has two cases on the court's lineup this fall, one involving the real estate industry (in which Roberts, as noted above, is also an investor).

Garre has been generous in his praise of his former colleague. He told the Los Angeles Times that Roberts' arguments were "difficult to tear apart. To do that over and over, where you might have gotten 50 questions from different justices, was what made John extraordinary."

Recusal is part of a huge -- and largely unresolved -- ethical debate: During a recent five-year period, 3,673 complaints against federal judges' actions or conflicts were closed by the judiciary with action taken against a judge in only six cases, an average of one response for every 600 complaints filed.

Federal law requires any federal judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned" and most have interpreted this to mean judicial disqualification should come "with even the appearance of impropriety." The law specifically states that federal judges should recuse themselves in cases they worked on while in private practice or in practice for the government and in cases where they have a direct financial interest. This law has been interpreted in dramatically divergent ways by the various justices.

The rules on Supreme Court recusals are less defined than for lower federal courts. Supreme Court justices are not subject to the Code of Conduct for U.S. Judges, which has stricter standards, although some have agreed to voluntarily abide by the code. It's up to the individual Supreme Court justice to decide if he should recuse himself from a case, and there is no mechanism for challenging that decision. This arrangement was evident most recently when Justice Antonin Scalia went duck hunting in 2004 with Vice President Dick Cheney while the court was considering whether the Bush administration should be required to release information about the private meetings of Cheney's energy task force.

Scalia saw no need for recusal then. "If it is reasonable to think that a Supreme Court justice can be bought so cheap," he said, "the nation is in deeper trouble than I had imagined."

Roberts' own history of dealing with potential conflicts of interest as a sitting justice is far from transparent. A request for his current list as an appellate court judge was denied by both Roberts' office and the clerk's office of the U.S. Court of Appeals for the District of Columbia Circuit. According to the clerk's office spokesperson, information about recusals in the federal courts is traditionally not made public. Each judge submits a list to the clerk, and those lists are reviewed privately by the judges' own clerks as part of the assignment process. At least two federal district courts voluntarily post recusal lists for their judges on their Web sites.

The spokesman at the clerk's office said the court does not give out information about recusals unless a judge announces it or makes it public. Roberts did so recently in once instance, concerning the case of the American Bar Association v. the FCC. Presumably Roberts saw a potential conflict of interest in making a ruling on the bar association at the same time the group was conducting its standard evaluation of a nominee to the high court.

But another hint of Roberts' narrow view of what constitutes a conflict of interest comes from a case he helped decide earlier this year, Hamdan v. Rumsfeld, regarding the Bush administration's war on terrorism. Since the decision was handed down, Roberts has admitted that he was already discussing his possible nomination to the high court with Bush's attorney general -- six days before oral arguments in the case. And two and half months before Roberts took part in the Hamdan decision, he was interviewed by a group including Vice President Cheney, Karl Rove, Cheney's chief of staff, Scooter Libby, Attorney General Alberto Gonzales, White House chief of staff Andy Card, and White House counsel Harriet Miers.

This unusual scenario -- with Roberts presiding over a case critical to the Bush administration at the same time he was being recruited by it to serve on the nation's highest bench -- has some critics thinking of the Watergate era. Peter Young, a lawyer in the landmark Pentagon Papers case, has written for a legal blog comparing Roberts' refusal to recuse himself from Hamdan with a similar refusal by Judge William M. Byrne Jr., whom the Nixon administration was actively recruiting, at the time of the Pentagon Papers case, to head the FBI.

Sierra Club senior attorney David Bookbinder, who was involved in the Cheney energy task force case and who filed an unsuccessful motion to prompt a Scalia recusal, says Roberts should have recused himself on the Hamdan case "in a New York minute," since there were plenty of other judges who could have taken his place and helped the court avoid an appearance of impropriety. He worries that the case reveals Roberts' insensitivity to the recusal issue. "As chief justice, he will be the justice most in the public eye," says Bookbinder, "yet in a key example he avoided making sure there was no impropriety."

Roberts has stated, "If confirmed, I would resolve any conflict of interest by looking to the letter and spirit of the Code of Conduct for United States Judges ... I would recuse myself from any matter involving my former law firm or former clients for whom I did work, for the periods specified in the Judicial Conference Guidelines."

"Periods specified" apparently means he can rule on any case involving former clients if he didn't work on the case himself. Otherwise, there seems to be no timeline or specific set of criteria. Given Roberts' career and investment history, will the Senate Judiciary Committee take that into account this week? The stakes are high: A justice who recuses himself from a case threatens the power of the Supreme Court by increasing the chances of a tie vote and therefore the possibility of a nonruling or a rehearing from the highest court in the land. But a justice who has reason and does not recuse him- or herself risks undermining the court in an even more drastic way.