Marcia Greenberger, NWLC’s Co-President and NominationWatch.org’s Executive Editor, testified before the Senate Judiciary Committee today on the Roberts nomination. Here’s some of what she had to say:
Some have claimed that because Judge Roberts has been so supportive of women family members, friends, and colleagues, he must also support women’s legal rights. But, Judge Roberts’ record consists of document after document detailing his past work to undermine women’s legal rights on the job, in schools and in government programs. This week, Judge Roberts told Senator Feinstein he could not identify anything he would change in his writings and memoranda except the tone he used – and his support for limiting life tenure for judges.
Judge Roberts provided a clear explanation for this seeming contradiction. He testified that he forms his legal views without regard to his life experiences as “a father, husband, or anything else.” Unfortunately, John Roberts’ view of the law is entirely divorced from its real-world consequences on women’s lives. In contrast to Justice Oliver Wendell Holmes, who said that the “life of the law is not logic but experience,” for Judge Roberts the law is pure logic, untempered by his life experiences.
The Christine Franklin case discussed again this morning demonstrates why his judicial philosophy is so harmful. As a high school student, her teacher and coach sexually harassed and ultimately raped her. Judge Roberts said he did not condone the behavior. I’m sure he did not. But that is not the point. As the political Deputy Solicitor General, he argued that Title IX should be interpreted to preclude her, and indeed any student, from recovering even one cent of damages – no matter how severe her injuries or how egregious the discrimination. He said students could still recover back pay or get the court to order the sexual abuse to stop in the future. But, high school students aren’t paid by their schools. And, by the time their cases get through the courts, they have often graduated – as had Christine Franklin – so they can’t benefit from a court order that a school protect its students in the future. His argument on the law would have let schools off scot free, and left students without effective protection or any remedy for the serious injuries they suffer.
The Supreme Court rejected this extreme limitation on Title IX, 9-0. Pressed repeatedly by Senator Leahy today to say the legal position he argued was wrong, Judge Roberts repeatedly refused to do so. At most, he said he had “no cause or agenda to revisit it or any quarrel with it.” Of course, a 9-0 decision is not one likely to be revisited. As for having no “quarrel” with it, that is a careful formulation we have heard time and again in past confirmation hearings. Justice Thomas used it, for example, in discussing the Establishment Clause Lemon test, which he attacked once on the Court. He explained that having “no quarrel” with a ruling does not mean he agrees with it.
On women’s constitutional right to Equal Protection of the law, Judge Roberts testified that he now believes courts must give heightened scrutiny to government practices that discriminate on the basis of sex. But Judge Roberts gave no guidance as to which version of heightened scrutiny he would apply: one that gives meaningful protection to women against sex discrimination, as Justice O’Connor and the majority of the Court have to date, or the Thomas-Scalia version that provides little real protection to women. His written record reinforces our concern.
The very same concern applies to the right to privacy, and the future of Roe v. Wade. Like Justice Thomas during his confirmation hearing, Judge Roberts said there is a right to privacy and it applies to the marital relationship and the use of contraceptives, but he refused to say how much further its protections would go. For Justice Thomas, we know the answer is not very far. In his first year on the Court, he said Roe v. Wade should be overturned, and later said there is no general right to privacy at all. John Roberts refused to say he disagreed with Justice Thomas in any way.
Judge Roberts has refused to disavow his past record, refused to answer the key questions on Americans’ legal rights, and left the Committee without the benefit of his full written record, including the Christine Franklin memoranda. Judge Roberts said many times he believes in judicial restraint. Unfortunately, he has been restrained in protecting individual rights and freedoms, and unrestrained in seeking to narrow them. The risks of turning back the clock for all Americans, and most especially women, are too high to confirm John Roberts to the Supreme Court.
