Nomination Watch

Roberts hearing will begin September 6

The media is reporting that Judge Roberts’s confirmation hearings will begin on September 6, not August 29, as was previously rumored.  It’s good that the Judiciary Committee isn’t going to rush to get the hearings started, since most of the materials on Roberts’s years of government service haven’t been released yet.  It would be particularly unfortunate to rush the confirmation process since Justice O’Connor has said she’ll stay on the bench until her successor is named.  This process will decide whether Judge Roberts sits on the Supreme Court for the next 30 years or so, so it’s certainly worth it to take a few extra weeks to make sure the country knows what it’s getting.

Roberts’s record: Very troubling, and we haven’t even seen all of it yet

Every day we learn more information about the positions taken by Supreme Court nominee John Roberts, and every day we get more troubled.  On Tuesday, thousands of pages of documents from Judge Roberts’s years of working for the Reagan Administration were released to the Senate.  Press reports about these memos reveal that, as a young lawyer, John Roberts was “every bit as conservative” as “the policy makers on the front lines of the Reagan revolution,” and sometimes he “took positions even more conservative than those of his prominent superiors.” 

Here are some details about Judge Roberts’s record that have come to light so far:

The right to privacy and abortion

• As a government lawyer, Roberts argued in a brief to the Supreme Court that Roe v. Wade “was wrongly decided and should be overruled.”  (Click here to read the brief).  Because Roberts was not just a career civil servant, but a political appointee who was picked for his job because of his ideological compatibility with the Administration, it is fair to assume, unless he demonstrates otherwise, that his own views were in line with those he argued on behalf of the government.
• In another memo he wrote while in the government, he referred to the "so-called ‘right to privacy,” and appeared to endorse the notion that “such an amorphous right is not to be found in the Constitution.”
• As Special Assistant to the Attorney General, Roberts wrote a draft article criticizing courts’ recognition of fundamental rights. He singled out the right to privacy, writing, “All of us, for example, may heartily endorse a ‘right to privacy.’ That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label ‘fundamental,’ and then resort to it as, in the words of one of Justice Black’s dissents, ‘a loose, flexible, uncontrolled standard for holding laws unconstitutional.’” The dissent Roberts cited was in Griswold v. Connecticut, the Supreme Court case recognizing that the constitutional right to privacy does not allow a state to ban the use of contraceptives.
• Roberts reportedly also argued in support of a bill that would have blocked federal courts from even hearing cases relating to abortion, arguing that such a laws would not “directly burden the exercise of any fundamental rights,” despite the fact that the law would have stopped courts from striking down laws that unconstitutionally restricted or criminalized abortion. 
• When he was the Deputy Solicitor General in the first Bush Administration, Roberts sided with Operation Rescue, a group that uses violence and intimidation to block the entrances to clinics that provide abortion services.  Roberts filed a “friend of the court” brief in the Supreme Court arguing that Operation Rescue’s tactics did not constitute discrimination against women, despite the fact that only women can have abortions and that Operation Rescue admitted its goal was to prevent women from obtaining abortions.
• The enthusiastic support that Roberts has garnered from the far right supports the assumption that his own views are the same as those he espoused when he was working for the government.  For instance, shortly after Judge Roberts’s nomination was announced, Robert Novak said that he was “sure” Roberts wants to overturn Roe v. Wade.  (The CNN transcript of his comments is here.)  Also, as the New York Times reported, Jay Sekulow, a conservative activist and longtime Roberts friend, stated that he knew Roberts believed the arguments he made—“He doesn’t argue just to argue,” Mr. Sekulow said.  (See this earlier post for more examples.)   
• As we discussed in this post, during his confirmation hearings for the D.C. Circuit, Roberts repeatedly refused to say whether he believes in and supports a constitutional right to privacy, or whether that right encompasses a woman’s right to have an abortion. 

Title IX and parallel antidiscrimination laws

• The newly disclosed memos from Roberts’s work in the Reagan Administration show that he pushed a very limited view of Title IX, the law that prohibits sex discrimination in education.  Roberts’s arguments for limiting Title IX are troubling not only because they would have limited protections against discrimination and sexual harassment for students, but also because his arguments would apply equally to other laws that Congress has passed, including Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination in programs that receive federal funds; Section 504 of the Rehabilitation Act of 1973, which protects the recipients of federal funds from discriminating against people with disabilities; and the Age Discrimination Act of 1975, which prohibits discrimination on the basis of age in federal programs or activities.
• In 1982, Roberts wrote a memo to the Attorney General arguing that the Department of Education should not appeal a district court’s ruling which prevented the Department from investigating alleged sex discrimination in athletics at the University of Richmond, because under the extremely narrow view of Title IX that Roberts espoused, Title IX’s prohibition of sex discrimination did not apply to the athletics program since it did not directly receive money from the federal government.
• Later, when he worked in the White House Counsel’s office, Roberts wrote a memo stating that there was “intuitive appeal” to the argument that a university should not be covered by Title IX at all even though its students paid tuition to the school with federal financial aid.  This argument would have severely narrowed the reach of Title IX.
• In the same memo, Roberts criticized the Civil Rights Restoration Bill, which later became law and which makes clear that Title IX and similar civil rights laws prohibiting discrimination on the basis of race, ethnicity, disability, and age apply to an entire institution, not just a particular part receiving earmarked federal funds.  Roberts argued that the bill would “radically” expand the scope of existing civil rights laws. 
• When he was Deputy Solicitor General in the first Bush Administration, Roberts filed a “friend of the court” brief arguing that a student who for years was sexually harassed by her teacher (who was also her coach) should not be allowed to sue for money damages.  (The brief is available here.)  The entire Supreme Court rejected Roberts’s approach, which would have left the student without any legal recourse. 
• As a private lawyer, Roberts represented the NCAA, and argued that the organization, which effectively controls intercollegiate athletics, is not covered by Title IX. 

Other civil rights protections

• When he worked for the Reagan Administration, Roberts reportedly argued that the Department of Education should not intervene in a sex discrimination case involving prisoners.  Roberts wrote that intervention would be inconsistent with the Administration’s belief in “judicial restraint,” and that “If equal treatment [of male and female prisoners] is required, the end result in this time of tight state prison budgets may be no programs for anyone.” 
• As a private lawyer, Roberts filed “friend of the court” briefs arguing against affirmative action programs on behalf of the Associated General Contractors of America in two different Supreme Court cases.
• In 1981, Roberts reportedly criticized a report on affirmative action written by the chair of the U.S. Commission on Civil Rights.  Roberts called the Chairman’s arguments in favor of affirmative action “perfectly circular” and wrote that “the obvious reason for failure” of affirmative action programs was that the programs “required the recruiting of inadequately prepared candidates.”
• As a government lawyer in the early 1990s, Roberts wrote two “friend of the court” briefs arguing that courts should end their involvement in school desegregation cases, even though the school systems were not desegregated.
• When he worked for the White House in the 1980s, Roberts argued in a memo (available here) that Congress could entirely prohibit courts from ordering busing to desegregate school systems.  This position was more extreme than the position the Reagan Administration took.
• When he worked in the Justice Department during the Reagan Administration, it appears that Roberts was part of the Administration’s effort to defeat a voting rights law that was eventually passed with an overwhelming majority in both the House and the Senate. 

Federalism, “states’ rights,” and Congressional power to protect the public

• Roberts’s arguments on Title IX, described above, reflect a very narrow reading of laws like Title IX, in which Congress requires the recipients of federal money to comply with federal laws.  Such an argument would severely limit the scope of not only Title IX, but many other civil rights protections. 
• As a judge on the D.C. Circuit, Judge Roberts wrote a dissenting opinion (available here) showing an openness to a very narrow view of Congress’ authority to pass laws to address national problems, in this case the Endangered Species Act.  This argument would also have serious implications for Congress’ authority to pass other laws protecting the health and safety of Americans, including civil rights and workplace laws. 
• In a 1999 interview, Roberts suggested that he thought Congress should not pass laws to address national problems such as violence against women.  He said, “We have gotten to the point these days where we think the only way we can show we’re serious about a problem is if we pass a federal law, whether it is the Violence Against Women Act or anything else.” 

We expect that more information on Judge Roberts’s record will become public in the coming weeks.  It is very unfortunate that the White House has attempted to prevent the Senate from examining a large Roberts’s record by announcing that it will not release memos Roberts wrote between 1989 and 1993, when he was a Deputy Solicitor General during the presidency of George H.W. Bush. 

However, in the days to come we will closely examine the record that is available, so stay tuned for further updates. It is essential that Judge Roberts explain his views on these and other critically important legal issues. 

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Roberts’s writings show hostility to Title IX and other core civil rights issues

If the Supreme Court were to adopt the narrow positions John Roberts has espoused in briefs and legal memos over the past two decades, Title IX and other core civil rights laws would be totally undermined, and women and girls would be set back decades.  As Marcia Greenberger, Co-President of the National Women’s Law Center and Executive Editor of NominationWatch.org, put it: 

“If John Roberts’ restrictive positions on Title IX had prevailed, aspiring Mia Hamms, Olympic gold medal champions and WNBA players would have doors of opportunity slammed in their face.

“We would not have had an 800% increase in female athletic participation at the high school level or a 400% increase at the college level.  We would not have protected students from sexual harassment in whether in classrooms, dormitories or where ever their studies took them in school.  And we would have many young women who face discrimination in advanced math and science programs without Title IX to protect them.”

According to recently released documents, John Roberts has argued that the Supreme Court should curb the reach of Title IX, limit the remedies available for sexual harassment and other forms of sex discrimination, and narrow Title IX’s application to athletics.

The damage caused by acceptance of these arguments would not be limited to Title IX.  Justice Roberts’ approach would apply to major, parallel civil rights statutes, including Title VI (prohibiting discrimination on the basis of race, color or national origin in federal programs or activities), Section 504 of the Rehabilitation Act (prohibiting discrimination on the basis of disability in federal programs or activities), and the Age Discrimination Act of 1975 (prohibiting discrimination on the basis of age in federal programs or activities), all which contain language nearly identical to that in Title IX. 

Stay tuned for more upcoming posts on Roberts’s record.   

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Oh, the irony

When a young John Roberts started working at the Justice Department in 1981, he spent his first days on the job preparing Sandra Day O’Connor for her Supreme Court confirmation hearings.  Here’s Roberts’ reported description of the strategy O’Connor was to take at her hearings:

“The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments,” Roberts wrote.

This is, of course, eerily similar to the advice many conservatives are now giving Roberts as he prepares for his hearings to replace O’Connor.  While hope springs eternal, this certainly puts a damper on our optimism that Judge Roberts will be forthcoming with the Senate and with the American people about his views on important legal issues during his own hearings to replace Justice O’Connor.

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Justice Roberts could vote to overturn Roe v. Wade, says Attorney General Gonzales

In an interview with AP News yesterday, Attorney General Alberto Gonzales argued that the Supreme Court is “not obliged” to uphold the precedent of Roe v. Wade if the Justices disagree with it:

"If you're asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because you're bound by the precedent," Mr. Gonzales said. "If you're a Supreme Court justice, that's a different question, because a Supreme Court justice is not obliged to follow precedent if you believe it's wrong."

In other words, according to the Attorney General, despite Judge Roberts’s assurances during his D.C. Circuit confirmation hearings that Roe v. Wade is “settled law,” if he were confirmed to the Supreme Court he would have the power to overturn that decades-old precedent anyway. 

This underscores what we said last week:  that Judge Roberts has not made clear his views on Roe v. Wade, and that the “settled law” mantra he recited at his lower court hearings is not a satisfactory answer for a Supreme Court nominee.  The Senate must require Judge Roberts to clarify this before it votes on his nomination. 

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Novak on the "Ginsburg standard” – let’s get the facts right

Robert Novak has a column today entitled “Will Dems apply Ginsburg Standard?," in which he argues that Ruth Bader Ginsburg refused to answer questions about her views on hot-button issues during her Supreme Court confirmation hearings in 1993, and that Judge Roberts should follow her example.

There are a couple of problems with this.  First, Novak’s portrayal of Justice Ginsburg’s hearings just isn’t accurate.  Then-Judge Ginsburg did answer Senators’ questions on a number of controversial issues, including, notably, abortion and the right to privacy—in fact, she spoke at length about her views on this subject.  Second, she had a very extensive record of opinions and articles when she appeared before the Judiciary Committee, giving Senators an ample basis on which to determine her views on important legal issues – which is not the case with Judge Roberts.

Here’s Justice Ginsburg’s response to then-Senator Hank Brown’s question about the constitutional underpinnings of the right to choose:

“[Y]ou asked me about my thinking about equal protection versus individual autonomy, and my answer to you is it is both.  This is something central to a woman’s life, to her dignity.  It is a decision that she must make for herself.  And when government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”

And here’s her answer to a question by Senator Leahy about whether there’s a constitutional right to privacy: 

“There is a constitutional right to privacy which consists I think of at least two distinguishable parts.  One is the privacy expressed most vividly in the Fourth Amendment, that is the government shall not break into my home or my office, without a warrant, based on probable cause, the government shall leave me alone.  The other is the notion of personal autonomy, the government shall not make my decisions for me, I shall make, as an individual, uninhibited, uncontrolled by my government, the decisions that affect my life’s course.” 

Indeed, the Judiciary Committee’s report on the Ginsburg nomination concluded that “the committee knows far more about Judge Ginsburg’s views on reproductive rights than it has known about any previous nominee’s.  Judge Ginsburg’s record and testimony suggest both a broad commitment to reproductive freedoms and a deep appreciation of the equality and autonomy values underlying them.” 

Novak’s second error is to ignore the fact that when Ginsburg appeared before the Committee in 1993, there was already an extensive public record of her views available to Senators to review – though he does correctly note that Judge Roberts (by contrast) has a “meager paper trail.”  Here’s the 1993 Judiciary Committee report on the Ginsburg nomination again:

“[E]ach member of the committee had ample means, prior to Judge Ginsburg’s hearing, to discover much pertinent information—indeed, the most pertinent information—about Judge Ginsburg’s judicial approach and method.  In more than 300 signed appellate opinions, and more than three score articles, Judge Ginsburg told the Senate and the American people an enormous amount about herself even before the hearings opened.”

Even if Ruth Bader Ginsburg really had refused to answer the Committee’s questions, then, it would be comparing apples to oranges to say that Roberts could do the same, since the public and the Senate now know next to nothing about his views. Judge Roberts must be forthcoming in his confirmation hearings, notwithstanding Novak’s misguided effort to give him cover for declining to do so.

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Roberts's D.C. Circuit hearing: He didn’t really say what he thinks about Roe

Some media reports might leave the impression that before Judge John Roberts was confirmed to the D.C. Circuit in 2003, he said he would not overturn Roe v. Wade. 

Unfortunately, though, this is not true.  In his two confirmation hearings and in answers to written questions by Senators, Roberts did say that Roe v. Wade is “settled law,” and that as a Circuit Court judge he would be bound by follow Supreme Court precedent.  However, Circuit Court judges have to follow Supreme Court precedent; that’s how our legal system works.  Supreme Court Justices, on the other hand, have the power to overturn precedents. 

An email that the conservative American Family Association sent to its supporters after Roberts’s nomination makes this point, as the New York Times reported.  The email explained, “[Roberts] had no authority to reverse Roe as an appellate court judge . . . but if confirmed as a Supreme Court justice, he will have that constitutional authority.” 

Further, a look at what Roberts actually said in answers to Senators’ questions about Roe reveals that he repeatedly refused to give responsive answers to questions that asked about whether Roe v. Wade was correctly decided, or questions about the right to privacy and whether it encompasses the right to choose.  Instead, he just repeated that Roe is settled law and that as a Circuit Court judge he would be bound by Supreme Court precedent. 

Here is what he really said: 

Senator Durbin asked Judge Roberts during his second hearing, “And so I am asking you today what is your position on Roe v. Wade?”

• Judge Roberts said, “I don’t -- Roe v. Wade is the settled law of the land. It is not – it’s a little more than settled.  It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision.  Accordingly, it’s the settled law of the land.  There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey.”
• Other than saying that Roe is “settled,” Judge Roberts did not provide any information about his position on the merits of the case or what it stands for.  He did not say whether he believes Roe v. Wade should be overruled, whether he agrees or disagrees with its reasoning and outcome, or whether he believes today that it is an important decision recognizing a woman’s right to terminate a pregnancy.   

Senator Kennedy similarly asked Judge Roberts in written questions, “Do you continue to believe that Roe should be overturned?”

• After noting that he was one of the attorneys on a government brief in a case called Rust v. Sullivan that asked the Court to overrule Roe, he said, “I do not believe it is proper to infer a lawyer’s personal views from the position taken on behalf of a client.  Roe is binding precedent and, if I were confirmed as a circuit judge, I would be bound to follow it. Nothing in my personal views would prevent me from doing so.”
• He did not say whether he believes (or “continues to believe”) that Roe should be overturned.

Senator Biden also asked Judge Roberts in written questions, “Do you continue to believe that Roe was wrongly decided? Why or why not?”

• After saying that his personal views should not be inferred from his participation in the federal government’s brief in Rust v. Sullivan, Judge Roberts responded, “The Supreme Court decision in Roe is binding precedent, and if I were to be confirmed as a circuit judge, I would be bound to follow it, regardless of my personal views. Nothing about my personal views would prevent me from doing so.”
• Again, Judge Roberts did not directly answer the question whether, in his view, Roe was wrongly decided, or provide the reasoning behind that belief.

Senator Feinstein asked Judge Roberts in written question, “Do you believe in and support a constitutional right to privacy? Please explain your understanding of a constitutional right to privacy.  Do you believe the constitutional right to privacy encompasses a woman’s right to have an abortion?”

• Judge Roberts answered, “If confirmed as a circuit judge, I would be bound by Supreme Court precedent recognizing the constitutional right to privacy. Nothing in my personal views or beliefs would prevent me from applying that precedent fully and faithfully.” He then recited the Supreme Court cases that have recognized a right to privacy in a variety of contexts, including Roe, and ended by quoting a passage from Casey stating that “[i]t is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood.” 
• He did not respond to the portions of the question asking whether he believes in and supports a constitutional right to privacy, asking for his understanding of that right, or asking whether, in his view, such a right encompasses the right to abortion.

Senator Feinstein also asked, in her written questions, “Mr. Roberts, do you continue to believe that Roe was wrongly decided? Do you continue to believe that Roe should be overruled? Do you continue to believe that the Supreme Court’s decision in Roe [has] no support in the text, structure, or history of the constitution?  Do you believe the holding of Roe v. Wade is the settled law of the land?”

• Judge Roberts answered only the very last part of this question, responding, “Roe is the settled law of the land. If I am confirmed as a circuit judge, I would be bound to follow it. Nothing about my personal beliefs would prevent me from doing so.”
• He did not answer whether he believes that Roe was wrongly decided, whether he believes it should be overruled or whether, in his view, the decision has any support in the text, structure or history of the Constitution.

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The importance of asking questions, volume 3578

David Brooks wrote today in the New York Times that Judge Roberts is a moderate type of conservative without a “dissident mentality.” 

Sounds good!  What’s his evidence?  Roberts “has chosen to live in the Maryland suburbs of Washington,” not in more conservative Virginia, and he “submitted his wedding notice to the wedding page of The New York Times, which is perceived as alien turf by ideological conservatives.”

Interesting cultural theorizing, but can we offer the modest suggestion that it would be simpler—and more helpful to the American people–to just ask Roberts about his legal philosophy, rather than trying to infer it from his zip code and his dealings with the New York Times Vows section? 

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The public supports Roe v. Wade; does Roberts?

As we noted before, many conservatives are crowing about the President’s choice of John Roberts to sit on the Supreme Court.  Some of them even went so far as to say they’re “sure” Roberts wants to overturn Roe v. Wade. 

At the same time, though, many are insisting that Senators shouldn’t ask Roberts what he thinks about Roe and abortion. 

One refreshing exception is “Five Questions for Roberts,” an essay by Stuart Taylor Jr., in which he admits that “both liberals and conservatives understandably want to know John G. Roberts Jr.’s view of Roe v. Wade,” and suggests five questions that would get at the issue.

Why do so few conservatives follow Mr. Taylor’s example, and instead insist that the public shouldn’t know what a potential Supreme Court Justice thinks about this important issue?   

It’s probably because they know the public supports Roe. 

In the last week, two separate national polls have shown that a large majority of the American people want the Supreme Court to uphold Roe v. Wade, the 1973 case that recognized a woman’s right to choose a legal abortion. 

A Wall Street Journal/NBC News poll conducted July 8-11 showed that 65% of Americans think Roe v. Wade should not be overturned.

USA Today reached a very similar result, finding that 68% of Americans don’t want Roe overturned.  Only 29% of Americans want the Supreme Court to overturn the decision.

The American people clearly have strong views—favorable ones—on Roe v. Wade, and they are entitled to know what John Roberts’s views are before the Senate determines whether he should have a lifetime seat on the Supreme Court. 

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The public has a right to know why the far right endorses Roberts so strongly

John Roberts’s public record is somewhat limited, but one way to get an idea of the nature of his views on legal issues is to see who is jumping for joy about his nomination. 

First, President Bush chose him.  The President has long made it clear that his model Supreme Court Justices are Clarence Thomas and Antonin Scalia, both of whom have demonstrated hostility to the fundamental rights and freedoms of Americans, including core women’s rights.  Clearly Judge Roberts passed muster with the White House on these issues, or he would not have been selected.   

Roberts’s enthusiastic support from the far right underscores this concern:

• Last night Operation Rescue issued a press release noting that Roberts “has shown strong conservative credentials with indications that he will not uphold Roe v. Wade.”  This morning, Operation Rescue’s President, Troy Newman, said on NPR that he was “thrilled” about the Roberts nomination.
• Shortly after the nomination was announced, Robert Novak went on CNN and said that he was “sure” Roberts wants to overturn Roe v. Wade. 
• Jay Sekulow, chief counsel of the American Center of Law and Justice (founded by Pat Robertson), who has known Mr. Roberts as a friend and colleague for 17 years, said of the nomination, “I think this is a tremendous pick.”   
• Tony Perkins, president of the Family Research Council, an extreme conservative group, praised President Bush for nominating Roberts:  “The President is a man of his word . . . He promised to nominate someone along the lines of a Scalia or a Thomas, and that is exactly what he has done.”
• Fred F. Fielding, a former White House Counsel in the Reagan Administration, said about Roberts, “I know he's conservative by talking with him about issues.”  Fielding told the Washington Post that Roberts supports expansive presidential powers and tended toward a “more literal reading of the Constitution.”
• Jan LaRue, counsel to the Concerned Women for America (another very conservative group), said, “Everything I know tells me he meets the president's criteria very well; he clearly is in the mold of [Antonin] Scalia and [Clarence] Thomas.” 
• Manuel Miranda, the head of a coalition of conservative groups called the Third Branch Conference, said that the President “hit it out of the ballpark” in picking Roberts. 

Before Roberts was named, far-right advocates made it abundantly clear that they would not accept a “stealth nominee” – i.e., one they didn’t trust to serve their agenda.  That is what their battle cry, “no more Souters,” is all about.  For instance: 

• Rush Limbaugh, in his radio broadcast, warned that there “is no longer any room” for a “stealth” nominee without a proven conservative record.   
• Manuel Miranda said about the possible selection of Alberto Gonzales:  “We don’t know what he really thinks on many, many issues.  That is something that conservatives on this nomination cannot tolerate.” 

The public has a right to know, and the Senate has a duty to determine, exactly why the White House and its right-wing allies are so confident that Roberts meets their test for a Supreme Court Justice.

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