Nomination Watch

The National Women’s Law Center opposes the nomination of John Roberts

At a press conference this morning on Capitol Hill, our own Marcia Greenberger, along with the heads of other leading civil rights and women’s rights groups, announced that based on the available record the National Women's Law Center opposes the nomination of John Roberts to a lifetime seat on the Supreme Court, and unveiled our detailed report, The Record of John Roberts  on Critical Legal Rights for Women.

The Center came to that decision after reviewing the extensive record available so far, and concluding that it reflects an approach to the law that would narrow and weaken core constitutional and statutory protections that have allowed women to advance in education and in the workplace and helped improve women’s overall lives.

As Marcia said, “On too many occasions and in too many ways, John Roberts has closed his eyes to the devastating consequences to women of his legal arguments, and he has simply disregarded contrary judicial precedents.  Had his views prevailed, core protections for women would be undermined.”

In our report, we outline how John Roberts aggressively sought to undermine established legal protections in three areas of the law central to women’s rights: constitutional and statutory protections against sex discrimination; the constitutional right to privacy, including the right to choose; and Congress’s power to pass laws and protect the public welfare along with citizens’ access to federal courts to enforce their rights.

“Make no mistake. Women across the country rely on these protections and would suffer serious setbacks if they were limited and weakened in the ways John Roberts has pressed throughout his career,” said Nancy Duff Campbell, Co-President of the National Women’s Law Center. “The Senate should not confirm John Roberts on this record.”

You can go here to read our report.  Here is a news story about this morning's press conference.  Check back soon for more information about the Roberts record and how you can get involved.

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We read the documents so you don't have to, part IV: What Roberts means by "judicial restraint"

(This is the fourth in a series of posts highlighting interesting things we find as we review the publicly-available documents from John Roberts’s early years in the Reagan Administration.  The first post, “Does Roberts really respect precedent?,” is here; the second one, “John Roberts on fair pay for women,” is here; and the third one, “News reports say Roberts influenced Justice Department civil rights positions,” is here.

Judge Roberts has described himself as a fan of judicial “restraint,” and this sounds like a generally good idea—who doesn’t prefer their courts restrained as opposed to, say, out of control?

However, a document from Roberts’s years working for the Reagan Justice Department suggests that one thing Roberts really means by “judicial restraint” is that courts should not strike down laws that discriminate against women or those that impinge on the right to privacy. 

You don’t have to take our word for it—read for yourself.  In November 1981, Roberts, then a special assistant to Attorney General William French Smith, wrote a document called “Draft Article on Judicial Restraint.”  In it, Roberts explained that the Department of Justice was “undertaking a conscious effort to encourage judicial restraint,” and that this effort would affect all of its activities, including its litigation efforts and its recommendations about the “selection and appointment of federal judges.” 

One part of the “judicial restraint” program, headlined by the phrase “avoid testing the constitutionality of laws by those devices which permit ready intrusion into the domain of the legislature,” meant that courts should not recognize a right to privacy (which encompasses a woman’s right to an abortion):

[One] means by which courts arrogate to themselves functions reserved to the legislative branch or the state is through so-called “fundamental rights” and “suspect class analyses . . . All of us, for example, may heartily endorse a “right to privacy.”  That does not, however, mean that the 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 Blacks’ dissents, “a lose, flexible, uncontrolled standard for holding laws unconstitutional.”  Griswold v. Connecticut. 

There, Roberts was quoting the dissenting opinion in the 1965 case holding that it was a violation of the constitutional right to privacy for Connecticut to make it illegal for married couples to use contraception.  It was opposition to this decades-old, widely-accepted holding in Griswold that helped scuttle the nomination of Robert Bork to the Supreme Court in 1987.

The “judicial restraint” plan also meant that courts should rarely if ever strike down laws that discriminated on the basis of sex, according to Roberts:

Extension of heightened scrutiny to other “insular and discrete” groups [other than racial minorities] . . .  represents an unjustified intrusion into legislative affairs.

This argument, as we noted earlier, was contrary to the law at the time it was written—the Supreme Court had already held that discrimination on the basis of gender warranted “heightened scrutiny.”   Roberts’s argument would mean that most laws that explicitly treated women differently than men would pass constitutional muster, even if there were no important reason for the difference in treatment. 

In short, Roberts wrote that courts should reverse course on decades of progress related to women’s rights and civil rights, all in the name of “judicial restraint.”  We’re adding one more thing that Roberts needs to explain in his hearing in September.   

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Roberts on Sex Discrimination under the Equal Protection Clause of the Constitution: Out of the Mainstream (Like Robert Bork!)

In memos John Roberts wrote during the Reagan Administration, he said that there should be no “heightened scrutiny” of government laws and policies that discriminate based on sex.   According to Roberts, requiring a rigorous justification for sex discrimination  -- “heightened scrutiny” -- represented “an unjustified intrusion into legislative affairs” and a “degree of judicial intrusion not invited by the Constitution.”  The problem with this is that the Supreme Court had already rejected that view in 1976 when it ruled that, under the Equal Protection Clause of the Fourteenth Amendment to the Constitution, heightened scrutiny does apply to any law or government policy that makes distinctions based on gender—which means such a law must be ruled unconstitutional unless it is substantially related to important governmental objectives.  Merely having a “rational reason” is not enough.

This is not some arcane legal distinction that matters only to lawyers.  Before the 1970’s, under the lower “rational basis test,” many laws harmful to women (and men) were upheld – like a law barring women from working as bartenders unless they were the wives or daughters of male bar owners, and a law making it easier for women to avoid jury duty.  But under heightened scrutiny, numerous laws that excluded women from opportunities in education, employment, and other arenas of American life have been struck down. 

Roberts’ memos, however, show that he objected to heightened scrutiny for sex discrimination and, based on that position, even recommended against Justice Department intervention in a sex discrimination suit against the Kentucky prison system.  The head of the Civil Rights Division had recommended intervention, saying there was “a very strong record that the Kentucky state prison system discriminates against female inmates in the vocational training and work opportunities made available to them” – and that official was William Bradford Reynolds, who turned out to be so hostile to civil rights enforcement in many areas that he was later rejected by the Republican-led Senate Judiciary Committee for confirmation to a higher position in the Department of Justice. But Roberts opposed intervention – which means he was to the right of Reynolds on civil rights enforcement in this case!

Roberts nonetheless urged against intervention because he said it would force Department of Justice attorneys to argue that the Constitution requires special protection against sex discrimination.   In other words, Roberts recommended that the Department of Justice avoid the litigation because it would require the attorneys to make arguments against sex discrimination that had been the law since 1976. 
Roberts also argued against intervention on the ground that discriminatory treatment of men and women in the prison’s vocational programs was acceptable in light of “tight state prison budgets.”  But the Supreme Court has never allowed a state or anyone else to discriminate just to save money. 

In the end, Roberts’ recommendations were not adopted, the Department did intervene in the Kentucky case, and the plaintiffs won.  But the arguments made by Roberts are no small matter.  In fact, at least one conservative Senator, Dennis DeConcini, voted against the confirmation of Robert Bork to the Supreme Court in 1987 because Bork rejected heightened scrutiny of sex discrimination.  As Senator DeConcini said on the floor of the Senate on October 22, 1987, in explaining his vote against Bork’s confirmation, Bork’s position on heightened scrutiny meant that Bork was “outside [the] area of mainstream conservatism which I think is absolutely necessary.” 

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The Right to Choose is NOT Safe

The right to choose as we know it may come to an end by the time the next Supreme Court term ends in June 2006. 

Allow us to explain.

A core principle of Roe v. Wade is that the government cannot jeopardize a woman’s health when limiting her access to abortion. This was affirmed by the Supreme Court in Planned Parenthood v. Casey and reaffirmed in Stenberg v. Carhart in 2000. In a 5-4 decision (with Justice O’Connor as the decisive fifth vote), the Court struck down a Nebraska law that banned certain abortion procedures as early as the 12th week of pregnancy without protecting women’s health. The Court confirmed then that health protections are a constitutional requirement. But there are currently four Justices on the Supreme Court who disagree: Chief Justice Rehnquist and Justices Scalia, Thomas, and Kennedy. They are willing to uphold an abortion law—even an outright ban on medically-approved abortion procedures—that threatens women’s health. They think the state can interfere with a doctor’s judgment about what is best for a woman’s health and can endanger her health in erecting barriers to abortion. 

If Justice O’Connor is replaced by a Justice who agrees with Rehnquist, Scalia, Thomas, and Kennedy, that will mean there are five votes (a majority!) to overturn an essential provision of Roe v. Wade, and allow the government to put women’s health at risk.  If that happens, the Supreme Court will have eviscerated Roe v. Wade.

Not only that, but if Justice O’Connor is replaced by a Justice who wants to overturn Roe completely, the Court will be only one vote away from abolishing the right to choose altogether. There are now three justices on the Court—Scalia, Thomas, and Rehnquist—who have said that Roe should be overruled in its entirety.  If Justice O’Connor’s successor agrees, that total will climb to four. That’s not enough to reverse Roe, but if just one of the other five Justices retires, his or her replacement could provide the fifth vote to overturn Roe and return us to the days when virtually all abortions could be criminalized. 

These prospects—a fifth vote to eliminate the protection of women’s health and a fourth vote to reverse Roe v. Wade altogether—are looming on the immediate horizon, in the Court’s term that opens this October.

A case coming up this fall, Ayotte v. Planned Parenthood, concerns the constitutionality of a New Hampshire parental notification law that contains no exception allowing an emergency abortion when it is necessary to protect a woman’s health.  The Court will decide if the Constitution requires a health exception. This presents an opportunity for a new majority on the Court to rule that health protections are no longer a constitutional requirement. Justice O’Connor’s replacement will cast that decisive fifth vote.

Just as troubling, in this case the Justices will consider a separate legal issue. They will decide which standard courts should use when considering a challenge to an abortion law on its face, before it has taken effect. Under the current standard, an abortion law can be declared unconstitutional before it takes effect, to avoid harm to women.  In this case, the state of New Hampshire is arguing for a new standard that would force women to wait until they have been injured before an unconstitutional law could be struck down.  The Bush Administration has weighed in to say that the Court should use this new standard.

If the new standard is adopted and the Court rules that health exceptions are not required, the legal landscape of abortion will change dramatically.  Roe as we know it would be significantly weakened and women’s health put at serious risk.

And when Ayotte is decided, we may find out whether the total number of Justices willing to overturn Roe altogether has climbed from three to four.  Although the case does not require the Court to address the validity of Roe, the anti-Roe justices may decide to anyway.  In Casey, Justices Rehnquist, Scalia, and Thomas said Roe should be overruled even though they acknowledged its authority was not implicated by the statute at issue. So we might know as soon as next summer whether Justice O’Connor’s replacement is following in her footsteps by protecting the right to choose or is joining the three anti-Roe Justices in calling for an end to Roe.

As we’ve pointed out before, there are many warning signs that Judge Roberts would provide an additional vote to undermine the right to choose and move the Court to within one vote of eliminating it outright.  That means we will be back right where we were when Justice Blackmun (the author of Roe v. Wade) ominously said in Casey: “I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.”

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Check out Friday’s press briefing and coverage

As we mentioned last week, our own Judy Appelbaum was one of several attorneys who briefed reporters last Friday on important cases that Judge Roberts worked on while in the Solicitor General’s office from 1989 to 1993.  Senators have requested documents about Roberts’s work on these cases, but so far none of that information has been released to the public.  The briefing was carried live on C-SPAN, and you can watch it using RealOne Player here (if that link doesn’t work, go here and click on “Alliance for Justice Briefing on John Roberts”). 

NPR also reported on the press briefing, quoting Judy on two points.  First, the report quoted Judy saying that Roberts’s own words show why the Solicitor General documents are so important: 

“In a May 5, 1993 op-ed in the Wall Street Journal, he said that who the Solicitor General decides to support—which cases, which side—can play a significant role in shaping what the Supreme Court does.”   

It also quoted Judy pointing out that Roberts argued in a case called Franklin v. Gwinnett County Public Schools that girls who were sexually harassed in school should not be able to sue for damages under Title IX if the school ignored the problem:

“The Supreme Court in that case emphatically and unanimously disagreed.  But had the John Roberts position prevailed, there would be no remedy at all for victims of sexual harassment like [Christine Franklin, the plaintiff in that case].” 

You can listen to the NPR report using WindowsMedia by clicking here.

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Eager for more paper cuts

Thus far, the White House has refused to disclose critical memos from Judge Roberts’ time in the Solicitor General’s office—undoubtedly the most important and influential political position he held in the executive branch.  These documents may provide critical insight into Roberts’ views on important areas of the law and need to be reviewed prior to any action on his nomination.

Tomorrow, August 19th at 11:00 a.m., lawyers from key organizations working on the nomination, including our own Judy Appelbaum, will brief reporters on the cases that are the focus of the request for Solicitor General memos, and why they are significant.  We’re told C-SPAN will cover the press briefing live, so look for it.

Confirmation to D.C. Circuit doesn’t mean a free pass to the Supreme Court

Some have suggested that Judge Roberts’s smooth confirmation to the D.C. Circuit in 2003 means he’s assured of an easy glide onto the Supreme Court.  But that’s like saying that because your company hired you, you’re guaranteed a promotion to C.E.O -- and we know that’s not true.  

In fact, that has not been the case for several judicial nominees in recent history.  In 1987, Judge Robert Bork’s nomination to the Supreme Court was rejected even though he had previously been confirmed to the D.C. Circuit.  Likewise, Judge Douglas Ginsburg, President Reagan’s next nominee to the Supreme Court after the Bork defeat, also was a sitting judge on the D.C. Circuit, but he withdrew from consideration for the Supreme Court after it became public that he had smoked marijuana.  Going back a little further, to the Nixon era, in 1969 Judge Clement Haynsworth’s nomination to the Supreme Court was rejected by the Senate even though he was then the Chief Judge of the Fourth Circuit.  President Nixon’s next Supreme Court nominee, Judge Harold Carswell, was rejected by the Senate just seven months after he was confirmed to the Fifth Circuit, in part because of concerns about his hostility to civil rights.   

It’s vitally important that the Senate look carefully at the records of people nominated to be Supreme Court Justices, even if they have previously been confirmed to lower federal courts, because the job of a Supreme Court Justice is very different from that of a lower court judge.  A judge on a federal Court of Appeals is one of many judges on that court, which is just one of 13 circuits, and the decisions made by that court apply only in the circuit where the court is located.  Most importantly, appeals court judges have to follow the previous decisions of both their own Circuit and of the Supreme Court, and their decisions can be reversed either by the full Circuit Court or by the Supreme Court if they’re wrong. 

By contrast, a Supreme Court Justice is one of just nine members of the Court, and (as we saw in the example of Justice O’Connor), he or she can be the swing vote that decides many cases.  The Supreme Court’s decisions apply to the whole country, and the Court has the power to reverse its own prior decisions.  There is no higher appeal for review or reversal of the Supreme Court’s decisions.  Even Congress can’t reverse a decision based on constitutional law.

Judge Roberts’s nomination to the Supreme Court should be evaluated on its own merits with no presumption toward confirmation simply because he is already a federal judge. 

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We read the documents so you don’t have to, Part III: News reports say Roberts influenced Justice Department civil rights positions

(This is the third in a series of posts highlighting interesting things we find as we review the publicly-available documents from John Roberts’s early years in the Reagan Administration.  The first post, “Does Roberts really respect precedent?,” is here, and the second one, “John Roberts on fair pay for women" is here.)

One of the questions that arises from John Roberts’s record in the Justice Department is how much the documents he wrote reflected his own views, as opposed to those of his bosses.  An interesting newspaper article that was in Roberts’s own files suggests that Roberts played an important role in influencing Department of Justice policies on civil rights enforcement in the early 1980s. 

The undated article, “Rebellion flares anew at Justice Dept.,” which is labeled at the top, “Boston Globe,” discusses the fact that some 100 Justice Department lawyers were “openly rebelling over what they perceive as the Reagan Administration’s general retreat from strong enforcement of federal civil rights laws.”  For example, the article said, over 200 civil rights division employees made public a letter they had sent to William Bradford Reynolds, the head of the Department’s civil rights division, charging that the decision to grant tax exemptions to segregationist private schools “violates existing federal civil rights laws.”  Other areas of concern the article cited were housing discrimination, school desegregation, affirmative action, and voting rights.

The article reports that the dissatisfied lawyers believed John Roberts was one of the people influencing the Justice Department’s controversial civil rights policies:

"They say Justice Department positions are influenced by two former Rehnquist clerks:  Charles Cooper, special assistant to Reynolds, and John Roberts, special assistant to the Attorney General."

During Roberts’s confirmation hearings for the D.C. Circuit, he told Senators that they should not assume that his personal views were the same as the arguments he made on behalf of the Administration he worked for.  This article indicates that Roberts himself bears some responsibility for controversial civil rights positions taken by the Justice Department in the Reagan Administration – a good area of inquiry for his confirmation hearing.

 

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We read the documents so you don’t have to, Part II: John Roberts on fair pay for women

Some 5,400 additional pages of documents relating to John Roberts became available yesterday, and some of them are especially interesting to us and the press.  A few relate to something called “comparable worth” – also known as “pay equity.”  What is that?  It’s a way of closing the pay gap between men and women.  It does so by calling on employers to evaluate the jobs in their workplace to determine whether – as is often the case -- those jobs predominantly held by women are underpaid (that is, paid less than jobs predominantly held by men that are comparable in skill, effort, responsibility, and working conditions), and if so, to come up with a plan to raise the wages of the jobs found to be underpaid.

John Roberts was clearly no fan of this concept!  Here’s what he said in one 1984 memo on the subject:  “It is difficult to exaggerate the perniciousness of the ‘comparable worth’ theory.  It mandates nothing less than central planning of the economy by judges."  In another memo, he commented on a letter sent to the White House by three women members of the House of Representatives (Olympia Snowe, Nancy Johnson and Claudine Schneider), in which they laid out the problem of lower pay for female-dominated occupations; expressed support for a federal court ruling for the plaintiffs in a comparable worth case brought under Title VII, the federal law barring sex discrimination in employment;  and asked the Administration not to get involved in the case.  Roberts wrote, “I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept.  Their slogan may as well be ‘From each according to his ability, to each according to her gender.’”  This last reference seems to play on a maxim from Karl Marx.

But pay equity is not “central planning of the economy by judges” or by anyone, let alone a Marxist system.  In fact, many states and localities across the U.S. have done exactly this kind of pay adjustment for their workforces.  Where female-dominated jobs were found to be undervalued and underpaid, women’s wages were raised.  To us, that seems like a good thing. 

These documents suggest a highly dismissive attitude toward efforts to secure fair pay for women.  They are also yet another example of John Roberts’s pattern of narrowly reading the laws that protect women from discrimination.  We’ve seen that he advocated positions undermining Title IX.  He argued against equal protection for women under the Fourteenth Amendment to the Constitution.  He argued that blockades directed against women seeking abortions did not constitute sex discrimination under federal law.  And now we can add:  he belittled legal arguments supporting fair pay for women.

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Roberts and clinic blockades: the Wichita case

Much has been written in the last few days about John Roberts’s involvement in Bray v. Alexandria Women’s Health Clinic, where he participated on the same side as Operation Rescue and other extremists in a brief and oral arguments for the government before the Supreme Court.  For our comments on that, see our earlier post.  Little attention has been paid, however, to another clinic case involving Roberts during the same period – one in Wichita, Kansas.

In Wichita during a six-week period in the summer of 1991, abortion clinics were the targets of mob blockades organized by Operation Rescue.  A federal district judge found that hundreds and perhaps thousands of people blocked access to clinics there, overwhelming the resources of the city’s police forces.  Overall, there were over 2,741 arrests.  (The facts are described in the district court decision in Women’s Health Care Services v. Operation Rescue.)  Using the same federal law at issue in the Bray case, the judge issued an injunction to stop the massive blockades and called in some 100 federal marshals.  This was not peaceful protest protected by the right of free speech.  Only with the federal court’s order and the presence of the U.S. marshals was order restored.

So where does John Roberts come in?  The U.S. government, around the same time, had decided to weigh in on the side of Operation Rescue in the Bray case, which involved a clinic in Alexandria, Virginia.  That’s the case John Roberts argued for the first Bush administration.  But the government took another step and appeared as a “friend of the court” in the Wichita case, too. The Wichita Eagle has reported that the decision to file a brief in Wichita was under Roberts’s direction, and it was reported at the time (Phila. Inquirer, Aug. 8, 1991) that Roberts acknowledged he participated in the decision to intervene in Wichita.

Attaching a copy of the government’s Supreme Court brief in the Bray case saying there was no violation of federal law (the brief that Roberts co-authored), the Justice Department asked the judge to stay the injunction while the case went up on appeal – again, siding with Operation Rescue and the perpetrators of the mayhem at the clinics.  This request would have meant lifting the court’s order immediately, and calling off the federal marshals.  Chaos would have ensued if that position had prevailed. 

You don’t have to take our word for this.  The federal judge in Wichita was outraged.  He not only denied the motion for a stay and kept the injunction (and marshals) in place, he lashed out at the Administration.  In a broadcast of the MacNeil/Lehrer NewsHour on August 7, 1991, he is quoted as saying, “If these marshals are removed . . .  there will be bloodshed, and it’s just ludicrous to believe that somehow our government puts an imprimatur and agrees to that.” In the same broadcast, John Roberts appeared and defended the Justice Department’s intervention in Wichita, said that the idea that there would be mayhem and violence is “absurd,” insisted that federal law did not apply, and  asserted that the victims of the mob violence could just “repair to state court.”  He never explained why he dismissed the concerns expressed by the judge who had heard the evidence first hand.

At the very time the U.S. government  inserted itself in the Wichita case, at that highly volatile moment, to support Operation Rescue and ask to lift the court’s order, many courts around the country had relied on the same federal law to keep the peace at clinics. The Justice Department could have kept out of the Wichita case altogether – or it could have weighed in to support the federal injunction.   In fact, in April 1993 (during the Clinton Administration), when the Wichita injunction went up on appeal to the 10th Circuit, the Justice Department filed a brief asking that it be upheld.  Even though the Supreme Court had decided the Bray case by then, Justice Department argued that there was still room under the law to maintain the Wichita injunction – both on a ground the Supreme Court majority hadn’t addressed in Bray, and based on evidence that was different from the record in Bray, which showed that in Wichita, Operation Rescue was targeting all women (and not men), not just those seeking abortion.

Bottom line:  John Roberts needs to explain his role in putting the U.S. government on the Operation Rescue and clinic blockaders not only in the Bray case in the Supreme Court, but in the Wichita case as well.  And internal documents from the Solicitor General’s office that could shed light on his role should be made available to the Senate and the public.

And now a Postscript about the Bray case:  some commentators have erroneously referred to what happened there as peaceful protest, protected by the First Amendment.  As we noted above, the Wichita events were nothing of the kind.  The same is true of the Alexandria events at issue in Bray.  The Operation Rescue activities there were described by Alexandria’s City Manager as “military-style assaults” on the clinics (he said this in an amicus brief in the case, and in testimony in support of new federal legislation after Bray was decided).  He testified, for example, that one police officer had his eye socket fractured as the overwhelmed local authorities tried to remove the mob and free up access to the facility.  This was not exactly peaceful, lawful protest.

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