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2005-09-14

Roberts Grilled on Voting Rights Act

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Chief Justice nominee John Roberts was grilled on a number of contentious issues on the second day of his Senate confirmation hearing, including abortion, civil rights, women’s rights and education. We play excerpts of the hearing. [includes rush transcript]

Chief Justice nominee John Roberts declined to say on Tuesday if he would reverse the long-standing decision legalizing abortion, but said he believed the Constitution accorded Americans the right to privacy, which is the key underpinning of Roe v. Wade.

Roberts’ comments came on the second day of his confirmation hearings before the Senate Judiciary Committee.

While Roberts said the 1973 landmark ruling was "settled as precedent," he declined to answer specific questions about abortion.

During more than 10 hours of questioning, Roberts also refused to answer specific questions about voting rights, civil rights and other issues, citing cases he could face on the high court.

Tuesday’s hearings provided Senators their first chance to publicly confront Roberts since President Bush announced his nomination in July. Each committee member was allotted 30 minutes for questions. A second round of questioning is scheduled for today. On Thursday, friends and experts are scheduled to testify about Roberts’ character and qualifications.

The Judiciary Committee is expected to vote by the end of next week and the full Senate is scheduled to vote by the end of the month. If confirmed, Roberts would take over leadership of the court when its session begins October 3rd.

Today we spend the hour playing excerpts from Tuesday’s hearing. A little later in the program we will take a look at John Roberts" comments on abortion with Kim Gandy, the president of the National Organization of Women, but we begin with another contentious issue during the hearing–civil rights.

  • Sen. Edward Kennedy (D–Massachusetts), speaking at chief justice confirmation hearing, September 13, 2005.
  • Sen. Russ Feingold (D–Wisconsin), questioning Chief Justice nominee John Roberts, September 13, 2005.

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: In his opening statement, Senator Ted Kennedy of Massachusetts talked about Hurricane Katrina and how it showed that poverty and racial injustice still permeate American society. He said the mission of the hearings was to find out how Roberts viewed the Constitution and its ability to eliminate inequality and protect the most vulnerable.

SEN. EDWARD KENNEDY: The stark and tragic images of human suffering in the aftermath of Hurricane Katrina have reminded us yet again that civil rights and equal rights are still the great unfinished business of America. The suffering has been disproportionately borne by the weak, the poor, the elderly and the infirm, and largely African Americans, who were forced by poverty, illness, unequal opportunity to stay behind and bear the brunt of the storm’s winds and floods. I believe that kind of disparate impact is morally wrong in this, the richest country in the world.

One question we must consider today is how we can take action to unify our nation, heal racial division, end poverty and give real-life meaning to the constitutional mandate that there be equal protection under law. I believe that the Constitution is not hostile to the idea that national problems can be solved at the national level through the cooperative efforts of the three coequal branches of government, the Congress, the executive and courts.

But not every president, not every legislator and not every judge agrees that the federal government has the power to address and to try to remedy the twin national problems of poverty and access to equal opportunity. I’m not talking about a handout, but a hand up, to give all of our citizens a fair shot at the American dream.

Judge Roberts, today we want to find out how you view the Constitution, our ability to protect the most vulnerable. Do you believe that Congress has the power to pass laws aimed at eliminating discrimination in our society? Or do you believe that our hands are tied, that the elected representatives of the people of the United States are without the power to pass laws aimed at righting wrongs, ending injustice, eliminating the inequalities that we have just witnessed so dramatically and tragically in New Orleans?

The American people want to know where you stand. We want to find out your view of the rule of law and the role of courts in our system. That’s why it is so important, and I hope we will receive your frank and candid and complete responses to the questions we ask today.

AMY GOODMAN: That was Senator Ted Kennedy of Massachusetts. Senator Russ Feingold of Wisconsin grilled Roberts about his views on the Voting Rights Act and asked him if he thought that the gains African Americans made under the act were beneficial to the country.

SEN. RUSS FEINGOLD: I want to follow up to Senator Kennedy’s questions about the Voting Rights Act and, in particular, about your opposition to amendments to the act in 1982 when you were an adviser to the attorney general in the Reagan administration’s Justice Department. In 1982, Congress voted overwhelmingly to amend Section 2 to reinstate the test for vote delusion that many lower courts had used prior to the City of Mobile case — one that looked, as we talked about earlier, at the effects of an electoral scheme on the ability of minorities to elect candidates of their choice rather than on the intent behind the scheme.

While you were in the Reagan Justice Department, you seemed to have done almost everything in your power to thwart that congressional effort. Your view was that the intent test should stand. This was the policy position of the Justice Department, which — as you’ve indicated, and you wholeheartedly supported at the time. Your memos make that very clear. In one memo, you lamented that the House bill then under consideration would make it much easier to attack, quote, "such widely accepted practices as at-large voting, "unquote.

Now those practices, of course, were among the most commonly used systems to prevent the election of any minorities to local government bodies. We know that the effects test put into place in the 1982 amendments to the Voting Rights Act has been very successful in improving minority representation in Congress and at all levels of government. Do you believe today that those gains have been good for the country?

JOHN ROBERTS: I think the gains under the Voting Rights Act have been very beneficial in promoting the right to vote which is preservative of all other rights. The issue about how to extend the Voting Rights Act, again, my position was a member of staff in the Justice Department. The administration position of extending the Voting Rights Act for the longest period in history as is without change was in no sense reflective of any disagreement with the proposition that the Voting Rights Act was extremely valuable in securing not just the right to vote but all other rights derivative of that.

SEN. RUSS FEINGOLD: But what I’m trying to get at here, Judge, obviously, is this distinction between effects and intent. Let’s follow up on the fact that you said that these gains have been good for the country. Do you believe that these gains we’ve seen in minority representation would have occurred if your view supporting the intent approach had prevailed in 1982?

JOHN ROBERTS: Well, I think some of them would have. I don’t know if all of them would have. It’s obviously impossible to tell, to go back and determine whether a particular application of a different approach would have had the same results or different results. I think that’s very hard to tell.

SEN. RUSS FEINGOLD: Do you still believe that the intent test was the more appropriate standard by which to evaluate both vote dilution claims?

JOHN ROBERTS: Senator, my personal view of the Voting Rights Act was not something somebody was interested in. You have people who serve on your staff, and their job is to help you implement your views as a senator.

SEN. RUSS FEINGOLD: I’m not questioning what your view was then —

JOHN ROBERTS: I’m just saying —

SEN. RUSS FEINGOLD: — I’m asking what you think now, having — this is pretty settled area; I think you’d agree — having seen all this, having been intimately involved in it, knowing it as well as you do, do you believe that the intent test is still the more appropriate standard by which to evaluate vote dilution claims?

JOHN ROBERTS: Senator, I haven’t studied the Voting Rights Act to determine whether the intent test or the effects test would have different results in different cases under section two. I’m in no position to make a judgment on that.

SEN. RUSS FEINGOLD: It would be my sense that you would be a person who would, with your enormous abilities and background, to have some sense about that. I obviously understand that requiring a voter to prove any additional factor makes it harder for the voter to win the case and that to prove the intent of an entire legislative body can be very difficult, especially when a voting system was put in place many years ago, requiring African Americans, Latino voters, many of whom have had limited financial resources, to find evidence of intent was adding an enormous hurdle for them to overcome.

In the Mobile v. Bolden case itself, which was pursued after the Supreme Court’s decision in 1980 and before Congress amended the law in 1982, makes it very clear, I think clear to all of us over the years, how difficult that standard was. African Americans from Mobile, Alabama, had been unable to elect any candidates to the position of city commissioner for every election cycle for something like seven decades. They challenged the method of electing city commissioners that allowed the same majority to choose all the commissioners all the time in at-large elections, and the evidence was very clear that as a practical mater, although African Americans could register and vote, they couldn’t elect anyone.

But to get relief under the Supreme Court standard, which you appear to have supported, they had to go to enormous effort and financial expense to prove discriminatory intent, including hiring a historian who could piece together the motivations of city officials who had designed the electoral system almost a hundred years earlier.

In this situation, the administration was not bound by a Supreme Court decision in deciding what position to take on the proposed Voting Rights Act’s amendment. So why at that point did you want to make section two cases so difficult to prove?

JOHN ROBERTS: Senator, you keep referring to what I supported and what I wanted to do. I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships. I was not shaping administration policy. The administration policy was shaped by the Attorney General, on whose staff I served. It was the policy of President Reagan. It was to extend the Voting Rights Act without change for the longest period in history at that point. And it was my job to promote the Attorney General’s view and the President’s view on that issue. And that’s what I was doing.

SEN. RUSS FEINGOLD: I recognize that. 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 you were right about — or the department, let’s say, since you were working for them — whether the department was right on seeking to keep the intent test or whether time has shown that the effects test is really the more appropriate test.

JOHN ROBERTS: Well, Senator, I haven’t followed the issue of the particular litigation. I had involvement in some litigation when I was in the Solicitor General’s Office in which we were effective in proving violations under the Voting Rights Act. Many of those cases arose under issues under Section 5, pre-clearance issues, and not under Section 2. I, as a judge, had a case, a three-judge district court case, again arising under the pre-clearance provisions. But 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.

SEN. RUSS FEINGOLD: But, with all respect, and I realize I should move on to another topic, but it just seems, given how strongly you stated some of these memos — and I understand you were doing your job — I would think you’d have a view today whether or not those strong statements still make sense.

AMY GOODMAN: Wisconsin Senator Russ Feingold, Democrat, questioning Judge John Roberts.

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