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2005-09-23 17:36:38 (UTC)

Wrong (Leahy) and Right (Kennedy) on Roberts

Published on Thursday, September 22, 2005 by The Nation
Wrong (Leahy) and Right (Kennedy) on Roberts
by John Nichols

Any doubts about whether the Bush administration's nominee
to become the 17th chief justice of the U.S. Supreme Court
will win the endorsement of the Senate Judiciary Committee
came were removed when the ranking Democrat on the
committee, Vermont Senator Patrick Leahy, said he would
join Republicans in supporting the confirmation of John
Roberts. Though Leahy asked some of the toughest questions
of Roberts during the Judiciary Committee hearing on the
nomination, and received some of the least-satisfying
answers, the senator has now decided to suspend disbelief.

``John Roberts is a man of integrity," Leahy announced,
adding that, "I can only take him at his word that he does
not have an ideological agenda.''

Leahy, a former prosecuting attorney, would never have
convinced a jury with so lame an expression of confidence
in a star witness. But his decision could convince a number
of Democrats on the committee -- including cautious
moderates such as California's Dianne Feinstein and
Wisconsin's Herb Kohl -- to back Roberts. And as many as
half of the Senate's 44 Democratic members may do the same
when the full chamber considers the nomination. Certainly,
the announcement by so-called Senate Democratic "Leader"
Harry Reid, D-Nevada, that he will oppose Roberts's
confirmation will not have much impact.

Indeed, there is some serious speculation that the Reid-
Leahy split -- coming with a 24-hour period -- is meant to
comfort the Democratic party's anti-Roberts base while at
the same time signaling to wavering Senate Democrats that
they are essentially free to back Roberts. Within the
Democratic Caucus, there is some sentiment for the view
that members should vote to confirm Roberts in order to
appear cooperative with the Bush administration when it
comes to high court nominations. That, the theory goes,
will make Democratic opposition to a conservative
replacement for retiring Justice Sandra Day O'Connor more
credible.

The awareness that such calculations are in play led to a
good deal of snickering when Leahy, who is nothing if he is
not an able politicial player, claimed to be "voting my
conscience" with his endorsement of Roberts. Even Leahy
seemed to be dubious about his stance, as the senator
admitted to lingering concerns that Roberts will, as chief
justice, be too deferential to presidential authority.
(Leahy's suggestion that his concerns were somewhat
alleviated by the fact that Roberts is an admirer of the
late Supreme Court Justice Robert Jackson was comic. It is
true that Jackson was involved in a high-profile challenge
to presidential authority in 1952, when he backed a Supreme
Court ruling to block an attempt by then-President Harry
Truman to seize and operate U.S. steel mills for the
supposed purpose of maintaining production of needed
munitions during the Korean War. But the fact that Roberts,
perhaps the most pro-corporate nominee in the history of
the court, respects a jurist who chose to prevent the
government from meddling in the affairs of major
corporations can hardly be called "reassuring.")

For evidence of where people of conscience are lining up,
consider the statement by the senior Democrat on the
Judiciary Committee, Massachusetts Senator Ted Kennedy, who
on Wednesday advanced the most convincing case for
rejecting Roberts. While conservatives will dismiss Kennedy
as a liberal partisan who would never back a Republican
nominee, the truth is the opposite. As the veteran senator
noted Wednesday, "In my 43 years in the United States
Senate, I have supported more nominees for the Supreme
Court by Republican presidents than by Democratic
presidents." Kennedy backed the nominations of Antonin
Scalia, Sandra Day O'Connor, Anthony Kennedy and other
members of the court who were nominated by Republican
presidents. (Significantly, Kennedy was one of nine
senators who voted against former President George H.W.
Bush's 1990 nomination of Justice David Souter, who has
turned out to be one of the court's most liberal members.
As with the Roberts nomination, Kennedy was concerned that
Souter had not been frank enough in his testimony before
the Judiciary Committee.)

It is notable that even if Leahy was not sufficiently
concerned by Roberts's responses to his questions, the
statement from senator from Massachusetts indicates that he
was influenced by the issues the senator from Vermont
raised.

Here is what Senator Kennedy had to say in announcing his
opposition to the Roberts nomination:

Our Founders proclaimed the bedrock principle that we are
all created equal. But everyone knows that when we started,
the reality was far different. For more than two centuries,
we have struggled, sometimes spilling precious blood, to
fulfill that unique American promise. The goals, the
principles, and the sacrifices of millions of Americans
breathed an ever-fuller life into our constitutional
ideals.

The Constitution itself has been the inspiration for this
march of progress. The open-ended principles that our
Founders had the wisdom to bequeath us have acquired ever-
deeper meaning over the years – a remarkably steady
movement toward greater protection for individual rights
and liberties, and an increasing assurance that governments
at all levels have the authority to defend ordinary
Americans from overreaching by those who would discriminate
against them or exploit them.

We have made much progress. But our work is not finished,
and we still look to our elected representatives and our
independent courts to uphold those founding principles in
each new generation, to continue the great march of
progress, to never turn back and never give up our hard-won
gains.

This was the basic issue in our hearings on the nomination
of John Roberts to become our next Chief Justice. Would he
bring to that high office the values and ideals that would
enable our struggle for equality and opportunities for all
to continue, or would he stand in the way?

The only records made available to us were those of John
Roberts as an aggressive activist in the Reagan
Administration, eager to limit basic values we have
achieved at great cost and sacrifice over the years,
especially in basic areas such as voting rights, women's
rights, civil rights, and disability rights. He's an
outstanding lawyer who says he could represent clients on
any side of a question. As Congressman John Lewis
eloquently stated in our hearings, 25 years ago, John
Roberts was on the wrong side of the nation's struggle to
achieve genuine equality of opportunity for all Americans.
Now, we need to know whose side he is on today. We need to
know that as Chief Justice of the United States, his sole
client would be all the American people. John Roberts is a
highly intelligent nominee. He has argued 39 cases before
the Supreme Court, and won more than half of them. He is
adept at turning questions on their head while giving
seemingly appropriate answers. These skills served him well
as a Supreme Court advocate. These same skills, however,
made a mockery of the confirmation process. At the end of
the four days of hearings, we still know very little more
than we knew when we started.

He proclaimed repeatedly in the hearings that he would
uphold the rule of law.

In answer to a question about his views, he said, "If I am
confirmed, on the Supreme Court, I need to decide those
questions with an open mind on the basis of the arguments
presented, on the basis of the record presented in the
case, and on the basis of the rule of law."

In answer to another question about his views, he stated
again, "I will confront issues in this area as I would
confront issues in any area, . . . and that would be to
fully and fairly consider the arguments presented and
decide them according to the rule of law."

In yet another instance, he proclaimed, "The responsibility
of the judicial branch is to decide particular cases that
are presented to them in this area according to the rule of
law." And again, "I became a lawyer or at least developed
as lawyer because I believe in the rule of law."

The rule of law. Everyone in the Senate agrees with that.
In fact, we have each taken an oath of office to protect
and defend the Constitution, and we take that oath
seriously. But it reveals little about how we will vote on
the important questions of the day, and what values and
ideals we bring to our decisions.

Judge Roberts said that a judge should be like an umpire,
calling the balls and strikes, but not making the rules.
But we all know that with any umpire, the call may depend
on your point of view. An instant replay from another angle
can show a very different result. Umpires follow the rules
of the game. But in critical cases, it may well depend on
where they are standing when they make the call.

The same holds true of judges.

As Justice Oliver Wendell Holmes famously stated, "The life
of the law has not been logic; it has been experience."

As Justice Stephen Breyer offered in his confirmation
hearing, "I always think law requires both a heart and a
head. If you do not have a heart, it becomes a sterile set
of rules, removed from human problems, and it will not
help. If you do not have a head, there is the risk that in
trying to decide a particular person's problem in a case
that may look fine for that person, you cause trouble for a
lot of other people, making their lives yet worse."

The rule of law is not some mathematical formula for meting
out justice. It is our values and ideals that give it real
meaning – in the case of the Constitution, not our personal
values and ideals, but our values and ideals derived from
the meaning of the constitutional text.

We all believe in the rule of law. But that is just the
beginning of the conversation when it comes to the meaning
of the Constitution. The Constitution of Justice Scalia and
Justice Thomas is a very different document from the
Constitution of Justice Stevens and Justice Souter.
Everyone follows the same text. That is the rule of law.
But the meaning of the text is often imprecise. You must
examine the intent of the Framers, the history, and the
current reality. And this examination will lead to very
different outcomes depending on each Justice's
constitutional world view. Is it a full and generous view
of our rights and liberties and of government power to
protect the people, or a narrow and cramped view of those
rights and liberties and the government's power to protect
ordinary Americans?

Based on the record available, there is clear and
convincing evidence that Judge Roberts' view of the rule of
law would narrow the protection of basic voting rights. The
values and perspectives displayed over and over again in
his record cast large doubts on his view of the validity of
laws that remove barriers to equal opportunity for women,
minorities, and the disabled. His record raises serious
questions about the power of Congress to pass laws to
protect citizens in matters they care about.

In fact, there is nothing in the record to indicate
otherwise. For all the hoopla and all the razzle-dazzle,
the record is no different in its bedrock substance than it
was the day the hearings started.

When Senator Kohl and others asked Judge Roberts whether he
would disavow any of the positions he took over the years,
he refused to do so. On the first day of the hearing,
Senator Kohl asked, "Which of those positions were you
supportive of, or are you still supportive of, and which
would you disavow?" Judge Roberts never provided a clear
response.

1.) Voting Rights Act

In the area of voting rights, he has a record of strong
opposition to Section 2 of the Voting Rights Act, which is
widely acknowledged by scholars and civil rights experts to
be one of the most powerful and effective civil rights laws
ever enacted. It outlaws voting practices that deny or
dilute the right to vote based on race, national origin, or
language minority status – and is largely uncontroversial
today. Before it was passed, there had not been a single
African-American elected since Reconstruction from seven of
the southern states with the greatest of African American
populations.

But in 1981 and 1982, Judge Roberts was one of a small
group of attorneys in the Justice Department urging the
Administration to oppose a strong Section 2, which allowed
discrimination to be proved by demonstrating its result,
not just its intent.

Although Judge Roberts sought to characterize his
opposition to this critical amendment as simply following
the policy of the Reagan Administration, the dozens of
memos he wrote on this subject show that he personally
believed the Administration was right to oppose
the "results test."

In fact, he pressed to keep others from changing their
minds about opposing the law. When Assistant Attorney
General for Civil Rights Brad Reynolds raised concerns
about sending the Senate a letter on this issue, John
Roberts urged the Attorney General to send it, stating
that "my own view is that something must be done to educate
the Senators on the seriousness of this problem . . . ." Of
course, the problem he saw was the amendment, not the
discrimination it was designed to end.

He also urged the Attorney General to assert his leadership
against the amendment to Section 2. He wrote that the
Attorney General should "head off any retrenchment efforts"
by White House staff who were inclined to support the
amendment. He consistently urged the Administration to
require voters to bear the heavy burden of proving
discriminatory intent in order to overturn practices that
locked them out of the electoral process.

Judge Roberts clearly knew that his position would make it
harder for voters to overturn restrictive voting laws. As
he wrote at the time, "violations of section 2 should not
be made too easy to prove . . . ." Remember, when he wrote
this there were no African Americans elected to Congress
from the states with the largest black populations, and
only 18 in Congress overall. And there were only 6 Latinos
in Congress. There is no indication in any of his writings
on the Voting Rights Act that he was the least bit troubled
by this obvious discrimination.

The year after section 2 was signed into law, Judge Roberts
wrote in a memo to the White House Counsel that "we were
burned" by the Voting Rights Act legislation.

Given his clear record of hostility to this key voting
rights protection, the public has a right to know if he
still holds these views. But Judge Roberts gave us hardly a
clue.

When I asked him if he holds these views today, he refused
to answer. He repeatedly tried to characterize his views as
the views of the Administration. He declined to say whether
he agreed with them – then or now. That answer strains
credibility, when the memos themselves declare: "my own
view is that something must be done…."

In fairness, he did concede that he no longer believes that
Section 2 is, to use his words from the
1980s, "constitutionally suspect." But the fact that it
took almost 20 minutes for him to provide this obvious
answer to a straightforward yes-or-no question is not
reassuring.

Both Senator Feingold and I tried to find out whether he
came to agree with the strengthened Voting Rights Act after
President Reagan signed it into law.

Even when Senator Feingold asked whether Judge Roberts
would acknowledge today that he had been wrong to oppose
the effects test, he refused to give a yes-or-no answer.

Senator Feingold asked: "What I'm trying to figure out is,
given the fact that you've followed this issue for such a
long time, I would think you would have a view at this
point about…whether the department was right in seeking to
keep the intent test or whether time has shown that the
effects test is really the more appropriate test."

Judge Roberts responded, "I'm certainly not an expert in
the area and haven't followed and have no way of evaluating
the relative effectiveness of the law as amended or the law
as it was prior to 1982."

So we still don't know whether he supports the basic law
against voting practices that result in denying voting
rights because of race, national origin, or language
minority status.

You don't need to be a voting rights expert to say we're
better off today in an America where persons of color can
be elected to Congress from any state in the country, as
opposed to the America of 1982, in which no African
American had been elected to Congress since Reconstruction
from Mississippi, Florida, Alabama, North Carolina, South
Carolina, Virginia, or Louisiana, because restrictive
election systems effectively denied African Americans and
other minorities the equal chance to elect representatives
of their choice. In these states, African Americans were a
third or more of the population, but they were effectively
blocked from electing any candidate of their choice decade
after decade throughout the twentieth century.

Yet Judge Roberts repeatedly refused to give even this
simple reassurance about the Act. Is that what he means by
the rule of law?

2.) Civil Rights Restoration Act

Another very important area in which Judge Roberts refused
to disavow his long history of opposition to civil rights
is in the prevention of discrimination by recipients of
federal funds. These laws were adopted because, Congress
believed, as President Kennedy said in 1963, that "[s]imple
justice requires that public funds, to which all
taxpayers . . . contribute, not be spent in any fashion
which encourages, entrenches, subsidizes, or results
in . . . discrimination." As an assistant to Attorney
General William French Smith, John Roberts argued that
these important laws should be narrowed.

In fact, his position was even more extreme than the Reagan
Administration's. In 1981, he supported a recommendation to
exempt institutions from civil rights laws if the only
federal financial assistance they received was in the form
of loans to their students. Under this view, the enormous
subsidies the federal government gives colleges and
universities in the form of federal financial aid would not
have been enough to require them to obey the laws against
discrimination.

At many private institutions, financial assistance to
students was the only form of federal aid, so Judge
Roberts' suggestion would have left those institutions
largely free to discriminate against women, the disabled,
and minorities in both education and hiring.

In fact, Judge Roberts's position was so extreme that it
was rejected by the Reagan Administration and later by the
Supreme Court. But in his testimony, Judge Roberts ignored
this aspect of his record. He refused even to acknowledge
that his past positions had gone beyond the
Administration's. Instead, he stated repeatedly that he was
just doing his job.

He said, "I was articulating and defending the
administration's position. . . . The position that the
administration advanced was the one I just described. The
universities were covered due to federal financial
assistance to their students. It extended to the admissions
office." That's an accurate statement of the
Administration's position, but the view Judge Roberts
advanced in his December 8, 1981 memo was quite different.

I also asked whether he still agreed with the statement he
made in 1985, that "[t]riggering coverage of an institution
on the basis of its accepting students who receive Federal
aid is not too onerous if only the admissions office is
covered. If the entire institution is to be covered,
however, it should be on the basis of something more solid
than Federal aid to the students."

Again and again, Judge Roberts refused to say whether he
still agrees with those words. He said only "Well, Senator,
the administration policy was as I articulated it. And it
was my job to articulate the administration policy."

That's no answer at all. I never asked about the policy of
the Reagan Administration. I asked only whether today, he
still believed, or would disavow, his earlier position.
Given his repeated refusal to answer, I can only conclude
that he still holds those views today.

In addition, in response to questions from Senator Biden,
Judge Roberts refused to say he no longer agrees with his
former position that laws against discrimination should be
narrowly interpreted to apply only in the parts of the
institution that directly receive federal funds. Under this
view, a college that received federal financial assistance
through its admissions office could not discriminate in
admissions, but it could discriminate in every other aspect
of its operations – in hiring teachers, in instructing
students, and in athletics. When Senator Biden reminded
Judge Roberts that he'd written in 1982 that he "strongly
agreed" with this view, Judge Roberts never said he no
longer holds that position. Instead he testified under
oath, "So if the view was strongly held, it was because I
thought that was a correct reading of the law." Is that his
view of the rule of law?

3.) Title IX

Another very important area in which Judge Roberts failed
to give any reassurance was his position protecting women
and girls against discrimination in educational programs
under Title IX.

In the case of Franklin v. Gwinnett County, in 1991, Judge
Roberts argued that Title IX did not allow a high school
girl who had been sexually abused by her teacher to recover
damages. Judge Roberts' argument would have left the victim
with no remedy at all.

Senator Leahy asked him, "Do you now personally agree with
and accept as binding law the reasoning of Justice White's
opinion in Franklin v. Gwinnett?" Judge Roberts replied
that, "It certainly was a precedent of the court that I
would apply under principles of stare decisis."

That answer sounds reassuring, until you realize that Judge
Roberts never answered whether he personally agreed with
this unanimous decision of the Court.

Senator Leahy offered Judge Roberts several chances to
disavow his position in the Franklin case. He asked, "Do
you now accept that Justice White's position [in Franklin
v. Gwinnett County] was right and the government's position
was wrong?" Just Roberts replied again, "I certainly accept
the decision of the court--the 9-0 decision, as you say –
as a binding precedent of the court. Again, I have no cause
or agenda to revisit it or any quarrel with it."

That sounded reassuring, until I recalled that Justice
Thomas repeatedly used the same words – "I have no quarrel
with it" – to evade answers during his nomination hearing.
Justice Thomas testified, for instance that he had "no
quarrel" with the test established by the Supreme Court in
Lemon v. Kurzman for analyzing claims under the First
Amendment's prohibition on the establishment of religion.
But just two years later, Justice Thomas joined a dissent
ridiculing the test and saying it should not be applied,
and Justice Thomas has consistently opposed the Lemon test
ever since.

I have to wonder why it was so difficult for Judge Roberts
simply to say, "Yes, in hindsight, I personally believe
that Franklin v. Gwinnett was correctly decided, and that
victims of intentional sex discrimination in educational
programs do have a right to relief under Title IX." Why was
that so difficult an answer for Judge Roberts to give?
Could it be that it was contrary to his view of the rule of
law?

4.) Affirmative Action

Judge Roberts's record is also one of consistent and long-
standing opposition to affirmative action. In the 1980s, he
urged the Reagan Administration to oppose affirmative
action. In the 1990s, in the administration of the first
President Bush, he urged the Supreme Court to overturn a
federal affirmative action program. In private practice in
the late 1990s and as recently as 2001, he litigated cases
challenging affirmative action. That includes his repeated
challenges to the Department of Transportation's
disadvantaged business enterprise program, which has been
upheld by every court that has reviewed it.

On affirmative action, his view of the rule of law seems to
be that established court precedents have little meaning,
even though they have been found again and again to advance
our progress on civil rights.

In 1981, he advocated abolishing race- and gender-conscious
remedies for discrimination, although he admitted this
position was in "tension" with the Supreme Court's opinion
in United Steelworkers of America v. Weber, upholding
affirmative action in employment – a case that had been
decided only two years earlier. He wrote that the
Administration did not see that opinion as a "guiding
principle."

In the same memos dealing with the Weber decision, Judge
Roberts even suggested that the opinion might be overturned
because of changes in the Court's composition.

Given his long and consistent opposition to affirmative
action, Senators were entitled to seek some reassurance
from the nominee that he would not use the power of the
Chief Justice to continue his past efforts to end
affirmative action.

I asked Judge Roberts, "Do you agree then with Justice
O'Connor, writing for the majority, that gave great weight
to the real-world impact of affirmative policies in
universities?" He stated, "I can certainly say that I do
think that that is the appropriate approach, without
commenting on the outcome or the judgment in a particular
case. But you do need to look at the real-world impact in
this area and I think in other areas as well." So he thinks
that we should consider real world impact, but he never
stated whether he agreed with Justice O'Connor that the
University of Michigan case was correctly decided. On that
issue, we don't know any more than we did before the
hearing.

Senator Feinstein also asked Judge Roberts his view of
affirmative action, but he avoided her question as well.
She asked, "Do you personally subscribe, not to quotas, but
to measured efforts that can withstand strict scrutiny?"
Judge Roberts replied, "A measured effort that can
withstand strict scrutiny is…a very positive approach."
Well, that sounds as though he agrees, but then he also
said, "And I think people will disagree about exactly what
the details should be."

When Senator Feinstein stated she specifically wanted to
know his view of Grutter v. Bollinger, the University of
Michigan case upholding affirmative action, Judge Roberts
gave a long answer that was no answer at all. "In the
Michigan case, obviously, you have – I always forget
whether it's the law school --- but I think the law school
program was upheld and the university program was struck
down because of the differences in the program. But efforts
to ensure the full participation in all aspects of our
society by people, without regard to their race, ethnicity,
gender, religious beliefs, all those are efforts that I
think are appropriate."

But of course, Senator Feinstein had not asked about
efforts to ensure participation without regard to race.
She'd asked his view on a particular affirmative action
program at the University of Michigan Law School that took
race into account. We still don't know whether he agrees
with that important Supreme Court decision, and his refusal
to tell us is very troubling.

5.) The Right of All Children to Share in Public Education

I'm also troubled by Judge Roberts' refusal to distance
himself from his past criticism of the very important
Supreme Court decision in Plyler v. Doe, which held that
the basic principle of equal protection requires all school
age children to have the same access to public education –
including the children of undocumented immigrants. In a
very real sense, the Plyler decision is as important to the
children of undocumented workers as the Brown decision is
to African American children. Yet Judge Roberts strongly
criticized the decision. On the day the case was decided,
he co-authored a memo criticizing the Solicitor General's
Office for failing to file a brief arguing that these
children could be denied public education.

Senator Durbin asked Judge Roberts, "Did you agree with the
decision . . . then? Or do you agree with it now?" Judge
Roberts avoided the question, saying "I haven't looked at
the decision in Plyler v. Doe in 23 years. . . ."

Senator Durbin asked, "Is this settled law, as far as you
are concerned, about our commitment in education. . . ?"
Judge Roberts again avoided the question, stating that he
had not looked at the case recently and that when he wrote
the memo, he was just doing his job.

So we are left with nothing to reassure us that he has
changed his mind from his harsh criticism of that opinion
in the past. His many statements of support for the rule of
law yield no clue about his true convictions on this
important question today.

6.) Women's Rights

Finally, a number of my colleagues on the Committee asked
Judge Roberts about issues related to women's rights and a
woman's right to privacy. On these important matters, too,
he never gave answers that shed light on his current views.

No one is entitled to become Chief Justice of the United
States. The confirmation of nominees to our courts – by and
with the advice and consent of the Senate – should not
require a leap of faith. Nominees must earn their
confirmation by providing us with full knowledge of the
values and convictions they will bring to decisions that
may profoundly affect our progress as a nation toward the
ideal of equality.

Judge Roberts has not done so. His repeated allegiance to
the rule of law reveals little about the values he would
bring to the job of Chief Justice of the United States. The
record we have shows a clear hostility to our progress
toward our common American vision of equal opportunity for
all of our citizens.

Supporting or opposing nominees to the Supreme Court should
not be a partisan question. In my 43 years in the United
States Senate, I have supported more nominees for the
Supreme Court by Republican presidents than by Democratic
presidents.

But, there is clear and convincing evidence that John
Roberts is the wrong choice for Chief Justice. I oppose the
nomination, and I urge my colleagues to do the same.

©2005 The Nation

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