Nomination Watch

Our response to today's Senate’s vote

Marcia Greenberger, NWLC’s Co-President and NominationWatch.org’s Executive Editor, released a statement today following the Senate's vote to confirm Roberts to Chief Justice of the United States.  Here is what she had to say:

“The confirmation of John Roberts as chief justice will shape the tenor of the Supreme Court for years to come. For the sake of the nation, we hope that John Roberts will steer the Court in a direction that supports the fundamental rights that all Americans rely on, including the right to privacy, basic women’s rights and civil rights, and other core legal and constitutional protections.

“John Roberts’s confirmation makes the choice of nominee for Justice O’Connor’s seat all the more crucial. Justice O’Connor was often the deciding vote in cases important to preserving women’s constitutional and legal rights as well as other critical legal protections. The stakes for all Americans are high, especially for women if their core legal rights are limited, weakened or potentially overturned.”

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“No Quarrel,” The Sequel: Roberts’s Post-Hearing Answers Are Revealing For What This Phrase Doesn’t Reveal

As we talked about earlier, John Roberts refused to give clear answers to many questions during the confirmation hearing about where he stands on important issues.  On several occasions during the hearing, when asked about past Supreme Court decisions, he said he has “no quarrel” with them.  We noted that this language was nearly identical to the language Clarence Thomas had used during his confirmation hearings. Thomas, when pressed by Senator DeConcini as to whether “no quarrel” meant that he actually agreed with a Court decision, admitted he did not mean “I adopt it as mine.” 

We concluded that Roberts also meant he did not agree with a Court decision when he said he had “no quarrel” with it. This conclusion has now been bolstered by written responses Roberts gave to Senators’ written questions following his hearing.  Senator Schumer directly asked Roberts what he meant when he said “no quarrel,” and the response was less than satisfying.

Senator Schumer:  Over the course of your hearing, you said on multiple occasions that you have “no quarrel” with particular holdings of the Supreme Court.  In Justice Thomas’s confirmation hearings, he similarly used the term “no quarrel” to describe his perspective on a number of holdings of the Supreme Court.  Senator DeConcini asked him, at one point, whether having “no quarrel” meant that he agreed with the Court’s holding; he simply said “I mean do not disagree with it”.  Justice Thomas later voted to overrule several of those rulings with which he had “no quarrel.”

Please explain more precisely what you mean by “no quarrel.”  Does it mean that you agree with the holding?

Roberts: What I meant during my oral testimony when I stated that I have “no quarrel” with a particular decision of the Supreme Court is that I would treat that decision as precedent, like any other opinion of the Court, consistent with principles of stare decisis.

In other words, Roberts did not mean that he agreed with those decisions or would uphold them; he was just acknowledging the obvious fact that they are court precedents. However, a Supreme Court Justice can vote to overturn court precedents.

In another written question to Roberts, Senator Schumer noted five Supreme Court decisions with which Roberts said he had “no quarrel,” and asked whether he also had “no quarrel” with Roe v. Wade.  Roberts refused to answer.

Senator Schumer:  Do you similarly have no quarrel with the holding of Roe v. Wade? What about the reasoning in that case?

Roberts:  As I noted before the Committee, issues related to abortion continue to come before the Court, including at least two cases scheduled for the upcoming Term.  I do not think I can express a view on the holding, or reasoning, of Roe v. Wade, without crossing the line that I have drawn and maintained before the Committee, of not commenting on issues that are likely to come before the Court, as have all the sitting Justices.

So, even though we now have confirmation from John Roberts that “no quarrel” means nothing more than he’ll accord a decision the same deference as any other precedent, he still refused to say even that about Roe.

Time will tell whether Judge Roberts will follow in the footsteps of Justice Thomas, and do more than “quarrel” with fundamental rights we have come to rely on.

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Rolling the Dice on Roberts – Not a Good Idea

This morning the Senate Judiciary Committee voted 13-5 in favor of the Roberts nomination, with Senators Biden, Durbin, Feinstein, Kennedy, and Schumer voting against the nominee.  As Marcia Greenberger, NWLC Co-President, was quoted in New York Times today as saying, the nominee "had the responsibility to demonstrate that he would protect women's rights and civil rights, and he failed to meet this burden. We are heartened by those on the Judiciary Committee who concluded the risks are too great and disagree with the conclusion of those who decided to take this gamble.” 

The Senators who decided to vote against Roberts did so because they determined that approving his nomination would pose too great a risk to the nation.  Here’s how Senator Schumer put it in this morning’s Committee meeting:

The risk that he might be a [Justice Clarence] Thomas and the lack of any reassurance that he won't—particularly in light of this president's professed desire to nominate people in that mold—is just not good enough.

Senator Feinstein, who as the only woman on the Senate Judiciary Committee did a great service to women across the country by looking very closely at Roberts’s record and answers to questions on issues important to women, also explained today that she did not have enough information to justify a “yes” vote: 

Now, I realized this past week, after reading and rereading the transcripts and going over his answers to the questions that I felt that I knew as little about what Judge Roberts really thought after the hearing as I did before the hearings . . . So, I can not in good conscience, cast a “yea” vote.  I will cast a “no” vote.

Even those who voted for Roberts recognized that doing so was a risk.  Senator Leahy, who voted “yes” in the Judiciary Committee today, also said that he had a lot of unanswered questions about Roberts.  However, he was willing to “hope and trust” that Roberts would be a good Chief Justice: 

Would I have liked more information? Of course . . .  I can only take [Roberts] at his word that he does not have an ideological agenda . . . I can only take him at his word that he will steer the court to serve as an appropriate check on potential abuses of presidential power . . . All of us will vote this month but only later will we know if Judge Roberts proves to be the kind of Chief Justice he says he would be, if he truly will be “his own man.”  I hope and trust that he will be.   

In our view, the Senate’s “advice and consent” responsibility requires Senators to get solid assurance that a nominee will uphold basic rights and freedoms.  John Roberts’s record doesn’t give us that assurance.  There are times in life when it’s fine to take a chance on an unknown, but selecting the Chief Justice who will preside for decades over the nation’s highest court is, to put it mildly, not one of those times -- especially when the “unknown” has such a troubling record.

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More groups announce opposition to Roberts

Since the close of John Roberts’s hearing, a large number of organizations have joined the chorus of voices opposed to Roberts’s confirmation.  This highlights the fact that Roberts failed to answer the many serious questions raised by his record during his hearing. 

Among the groups that have recently announced their opposition to Roberts are Planned Parenthood Federation of America, the Leadership Conference on Civil Rights, the Congressional Black Caucus, and several unions and labor organizations, including the AFL-CIO, the American Federation of State, County, and Municipal Employees (AFSCME), Service Employees International Union (SEIU), and the Coalition of Labor Union Women.  Here is an updated list of the organizations now opposed to Roberts’s confirmation: 

ADA Watch and the National Coalition for Disability Rights
Alliance for Justice
American Association for Affirmative Action
Americans United for Separation of Church and State
American Association of University Women
American Federation of Labor - Congress of Industrial Organizations (AFL-CIO)
American Federation of State, County, and Municipal Employees (AFSCME)
Black Women’s Health Imperative
Californians for Fair and Independent Judges
Center for American Progress
Coalition of Labor Union Women
Congressional Black Caucus
Equal Justice Society
Feminist Majority
Hispanics for a Fair Judiciary
Human Rights Campaign
Judge David L. Bazelon Center for Mental Health Law
Lambda Legal
Leadership Conference on Civil Rights
League of United Latin American Citizens (LULAC)
Legal Momentum
Mexican American Legal Defense and Educational Fund
MoveOn.org
National Association for the Advancement of Colored People (NAACP)
NAACP Legal Defense and Educational Fund
NARAL Pro-Choice America
National Abortion Federation
National Asian Pacific American Women’s Forum
National Association of Social Workers
National Center for Lesbian Rights
National Council of Jewish Women
National Council of Women’s Organizations
National Family Planning and Reproductive Health Association
National Gay and Lesbian Task Force
National Latina Institute for Reproductive Health
National Organization for Women 
National Partnership for Women and Families
National Women's Law Center
National Lawyers Guild
Parents, Families and Friends of Lesbians and Gays
People for the American Way
Planned Parenthood Federation of America
Pro-Choice Public Education Project’s Young Women’s Leadership Council
RAINBOW/PUSH Coalition
Religious Coalition for Reproductive Choice
Service Employees International Union (SEIU)
Sexuality Information and Education Council of the United States (SIECUS)
The Japanese American Citizens League
The Shalom Center
USAction
Women’s Sports Foundation
Woodhull Freedom Foundation and Federation

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The New York Times got it right: Roberts has failed to prove he deserves the job

Two major national newspapers editorialized on the Roberts nomination yesterday, and with all due respect, we think one got it right and the other simply doesn’t make sense.

The New York Times urged Senators to vote against the Roberts nomination because his pre-hearing record “raise[d] red flags on issues like civil rights, women’s rights and the right to privacy” and he therefore “needed to use the hearings to reassure the American people in a substantive way that he would be a vigilant guardian of their rights.”  But instead, the Times accurately noted, “Over days of testimony, he dodged and weaved around many . . . .critical legal issues.”  To exercise their Constitutional duty of “advice and consent” in a meaningful way, the Times concluded, Senators need information that has been withheld from them – and because they did not get it, Roberts has not proved he deserves the job and “the stakes are simply too high” for Senators to take the risk of giving it to him.  Well said.

Now compare the Washington Post, which says that despite problematic aspects of his record such as his narrow view of civil rights protections, Roberts deserves support because: “Having done their duty by asking Judge Roberts tough questions, Democrats should not respond by withholding that support.”  You read that right:  because Senators asked tough questions, the Post reasons, they should vote in favor of the nomination regardless of the answers they got – if any!  Never mind that Judge Roberts stonewalled them on key legal issues; as long as the questions were asked, that’s enough.  (See here for samples of his stonewalling.)   We wonder whether the Post stopped to consider that, according to its logic, there’s really no point in confirmation hearings at all – the Senate might as well let the nominee give an opening statement and leave it at that.  We doubt that’s what “advice and consent” was really meant to look like.

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What does Roberts really mean when he says he has “no quarrel” with a Supreme Court decision?

Throughout the hearings, John Roberts refused to give straightforward answers to many questions about where he stands on important issues.  One way that he avoided answering might not have been immediately obvious to everyone.  On several occasions, when asked about past Supreme Court decisions, he said he has “no quarrel” with them.  This may sound straightforward, but there’s more – or perhaps less -- to it than meets the eye. 

We heard “no quarrel,” for example, when Senator Leahy asked him about Franklin v. Gwinnett County, the 1991 case in which Roberts argued that Title IX did not allow Christine Franklin, a high-school girl who was sexually abused by her teacher, to recover damages for intentional sex discrimination. As we noted here, Roberts’ argument would have left Franklin with no remedy whatsoever. When Leahy asked Roberts if he now concedes that the Court’s position was right and the government’s position wrong, Roberts said this:

Sen. Leahy: [M]y question is: Do you now accept that Justice White's position [in Franklin] was right and the government's position was wrong?

Roberts: 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.

Another time we heard this was in an exchange with Senator Feinstein about the right to privacy.

Sen. Feinstein: Now, yesterday you said this: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The courts since Griswold has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause. Do you think that right of privacy that you're talking about there extends to single people, as well as married people?

Roberts: The courts held that in the Eisenstadt case, which came shortly after Griswold, largely under principles of equal protection, and I don't have any quarrel with that conclusion in Eisenstadt.

Yet another time we heard this was in an exchange with Senator Feinstein on a case called Plyler v. Doe, involving the right of undocumented immigrant children to public education.  Again, Roberts said, “I have no quarrel the court’s decision.”

This “I don’t have any quarrel” language sounded strangely familiar to us. Where have we heard this before? Oh, that’s right, Clarence Thomas’s confirmation hearings in 1991, where we heard it many times.  One example was eerily similar to the exchange with Senator Feinstein this week on the Eisenstadt case:

Sen. Biden: And I ask you again: Do you think that single people have a right to privacy anchored in the liberty clause of the 14th amendment?

Thomas:  The Court has found such a right of privacy to exist in Eisenstadt v. Baird, and I do not have a quarrel with that decision.

And we know this: when Clarence Thomas said he had “no quarrel” with a Supreme Court precedent, it did not mean he would be unwilling to vote to overrule it.   For example, in his confirmation hearing, he said he had “no quarrel” with the “Lemon test” the Court uses to analyze cases under the Establishment Clause of the First Amendment (involving the establishment of religion), but just two years later he joined a dissent ridiculing the same test and saying it should not be applied.  And when then-Senator DeConcini pressed him in the confirmation hearing about whether “no quarrel” meant that he actually agreed with a Court decision, he admitted he did not mean “I adopt it as mine.” 

So when Judge Roberts says he has “no quarrel” with a decision, he is really telling us little or nothing about his position. It’s just another form of evasion -- and we do have a quarrel with that. 

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Listen to what Roberts won’t tell you

Check out this web ad from the confirmation hearing showing Roberts’s persistent refusal to answer questions about important rights and cases. 

Marcia Greenberger’s testimony: Roberts’s testimony hasn’t allayed our concerns

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.

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On day 3, Roberts continues to dodge questions on privacy

The pattern Judge Roberts set yesterday of refusing to express his opinions on privacy and choice continued today.  This morning Senator Specter asked him directly if he agreed that a “woman’s interest in having an abortion is a form of liberty protected by the due process clause.”  Roberts refused to answer:   

Roberts:  Well, that does get into an area where cases are coming up . . . I  don't think I should opine on the correctness or incorrectness of particular views in areas that are likely to come before the court.

Later, Senator Biden asked about whether the right to privacy extends to a person’s own end-of-life medical decisions for herself or for an ill family member, Roberts refused to talk about the issue at all:

Biden:  Do you think the constitution encompasses a fundamental right for my father to conclude that he does not want to continue, he does not want to continue on a life support system?
Roberts:  Well, Senator, I can't answer that question in the abstract because—
Biden:  That’s not abstract.  That's real.
Roberts:  Well, Senator, as a legal matter it is abstract . . .

The American people deserve to know what they’re getting in a Supreme Court Chief Justice, but Roberts is consistently refusing to say what kind of Chief he would be.  His refusals strongly suggest that he would not, in fact, protect Americans’ rights to privacy, including a woman’s right to choose and each individual’s right to make personal medical decisions.  Senator Biden put it very well during the hearing when he commented that Roberts’s refusal to share his understanding of the law meant that the Senate will be “rolling the dice” if they vote to confirm him. 

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More on Feinstein’s questions: Roberts’s “support” for women’s equal rights rings hollow

Yesterday afternoon Senator Feinstein asked Roberts questions about statements in his record showing a dismissive attitude about sex discrimination (we discussed that record here).  Roberts defended himself by saying, “I have always supported and support today equal rights for women, particularly in the workplace.” 

But, as our mothers taught us, actions speak louder than words.  If Roberts had always supported equal rights for women, in the workplace and elsewhere, why has he consistently argued for a narrow interpretation of women’s legal rights, and even argued against cases challenging sex discrimination while in the government? Just a few examples:

• In a memo he wrote in the early 1980s, he argued that the Justice Department should not intervene in a sex discrimination case that others in the Reagan Administration found compelling.  In his memo, he argued that “tight state prison budgets” could justify discrimination against women. 
• In several instances, Roberts pressed for narrow interpretations of Title IX, the law that bars sex discrimination in education.  As we mentioned earlier, he argued in the Supreme Court that a victim of intentional sex discrimination should not be able to sue for money damages.
• In one memo he insisted that the pay gap for women is not based even in part on discrimination. 
• In 1981, when the Reagan Justice Department investigated race and sex discrimination in the hiring and promotion of teachers and principals in a school district in Georgia and concluded that there was “no credible defense,” Roberts nonetheless objected to a proposed settlement because he thought the people who were discriminated against should also have to prove that they were more qualified than the people who were actually hired.
• He repeatedly opposed affirmative action, in memoranda as well as in briefs he co-authored as Deputy Solicitor General and in private practice.

We’re not convinced that an afternoon of general platitudes can overshadow a career of trying to narrow protections against sex discrimination. 

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