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Wrong (Leahy) and right (Kennedy) on Roberts | The Nation

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John Nichols

John Nichols

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Wrong (Leahy) and right (Kennedy) on Roberts

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.

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