Roberts Is the Wrong Choice for Chief Justice
By Senator Ted Kennedy
t r u t h o u t | Statement
Wednesday 21 September 2005
Kennedy floor statement on his decision to vote against the nomination of
Judge John Roberts.
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.
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?
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?
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?
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.
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.
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.
http://www.truthout.org/docs_2005/092105Y.shtml
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