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Just checking my email, been doing computer upgrades all day. Glad he's opposing Roberts though.
Mr. President, we all know that there are few things the Senate does which are as important as confirming a Supreme Court Justice, let alone the Chief Justice of the United States. We know that making the decision to support or oppose a nominee is serious and complicated. We don’t need to belabor those points. What we do need to talk about is what kind of process must occur before a Senator can vote for or against a judicial nominee. What kind of information must be provided. What kind of discourse we must engage in.
I met with Judge Roberts last week. I really enjoyed our conversation. He is earnest, friendly, and incredibly intelligent. On a personal level, I liked him. He has dedicated his life to the law, has given back to the legal community, and is certainly a superb lawyer. It may turn out that he will be an outstanding Chief Justice, but I cannot say with confidence that I know how he will approach constitutional questions of fundamental importance.
I have read memos he wrote during the Reagan Administration. I have reviewed the limited materials available from his time in the Solicitor General’s office, where he worked under Ken Starr, and in private practice at Hogan and Hartson. I have read the cases that he has participated in on the D.C. Circuit. I have listened to the judiciary committee hearings, and I reviewed the transcripts.
After all that, I still find something is missing. Something critical to our democratic process. Something to ensure that we have an appropriate understanding of our courts and our judges and their role in America. That understanding requires a real exchange of information and a real development of ideas-similar, in fact, to that which occurs during every argument at the Supreme Court. In appellate arguments, judges and Justices question lawyers, probing the depth of their legal arguments and the consequences of potential outcomes. They determine how interpretive principles apply and how they can reconcile apparently conflicting arguments. The result is a better understanding of the record before the court and, hopefully, a principled approach to deciding the case.
Judge Roberts’ judiciary committee hearings continue an increasingly sterile confirmation process. No genuine legal engagement between the questioners and the questioned. No real exchange of information and little substantive discussion. The confirmation exercise has become little more than an empty shell.
The Administration’s steadfast refusal to disclose documents Judge Roberts worked on while serving as a Deputy Solicitor General in the first Bush Administration has only compounded the problem. They claim that disclosure of the documents will violate attorney-client privilege. This argument is absurd. What client are they trying to protect? The Solicitor General is charged with arguing cases on behalf of all Americans. We were Judge Roberts’ client when he worked in the Solicitor General’s office. We have a right to know what he thought about the arguments he made on behalf of the American people.
When John Roberts served as a Deputy Solicitor General under Ken Starr, he was intimately involved in critical decisions that office made, like whether to intervene in pending cases; what legal arguments to advance in support of their position; whether to push the Supreme Court to review a particular case. These decisions helped shape how federal law was applied and how our Constitution was interpreted. Yet, we-the Senators who are constitutionally obligated to give consent to this nominee-do not know the positions that Roberts took or the arguments that he made.
For example, the Solicitor General’s office decided to intervene in Bray v. Alexandria Women’s Health Clinic. The case had been brought against abortion clinic protestors during the height of clinic violence and bombings. The plaintiffs argued that the protesters were violating a federal anti-discrimination law by blocking access to clinics and inciting violence. The Government intervened and argued that the federal anti-discrimination law did not apply and therefore could not be used to stop the protesters. Judge Roberts briefed and argued the case for the Government. I believe that the arguments advanced by the Government-and the consequences of those arguments-are troubling. But, what we do not know is even more important: what role did Judge Roberts have in making them? Did he consider the consequences? Did he argue for a more narrow or more broad interpretation of the law?
At the same time, the Solicitor General’s office intervened in a district court case in Wichita, Kansas which raised the same issues that the Supreme Court in Bray was facing. The government tried to get the district court to lift an injunction put in place to protect the safety of the clinic workers and patients. They argued that the plaintiffs could not win and therefore the injunction was improper. The district court denied the Government’s request and chastised it for unnecessarily endangering people’s lives. The question is what role did Judge Roberts have in making that decision? What was the legal reasoning that prompted it? Did he consider the real life dangers that would result from his legal argument?
The Solicitor General’s office is never obligated to intervene in private litigation. There are thousands of cases pending every day that, like these cases, raise questions of federal law. The question is why did the Government choose to intervene in these particular cases? And, even more importantly, what role did Judge Roberts have in making that decision?
The Administration’s refusal to disclose these documents created a serious roadblock in the Senate’s ability to evaluate Judge Roberts. But Judge Roberts’ refusal to genuinely engage in the confirmation hearings created an even bigger one.
Now I understand that a Supreme Court nominee cannot answer questions about cases coming or likely to come before him. I understand that he cannot promise to resolve future cases in a particular way. And, I am not asking him to. But, this does not mean that he should refuse to discuss the principles of decided cases and whether he agrees with them or not. It does not mean he should refuse to disclose his approach to constitutional analysis. It does not mean that he should do nothing more than recite the status of current Supreme Court case law.
This is not the first time that Supreme Court nominees have refused to engage in a meaningful discourse during judiciary committee hearings. Justice Souter refused to answer fundamental questions about his judicial philosophy. For that reason, I voted against him, and I am happy to say that I have been pleasantly surprised that my concerns regarding his views on civil rights and privacy did not come to pass. Justice Thomas also refused to answer fundamental questions about judicial philosophy. As I said at the time, Justice Thomas “found a lot of ways to say ‘I do not know’ or ‘I disagree’ or ‘I cannot agree’ or ‘I can’t say whether I agree.” I voted against Justice Thomas because I did not know what kind of Justice he would be. And, I believe I was correct in making that decision.
At the end of the day, I find myself much in the same position that I was with Justices Souter and Thomas. Notwithstanding his impressive legal resume, I cannot say with confidence that I know who Judge Roberts really is or what kind of Chief Justice he will be. In what direction will he take the Supreme Court? Will he protect the civil rights and liberties that we have fought so long and hard for? Will he support Congress’s power to enact critical environmental legislation? Will he be an effective check on executive branch actions? Before I vote for a Chief Justice-particularly one who may lead the Court for at potentially 30 years or more, I need to know the answers to these fundamental questions. Unfortunately, in the case of Judge Roberts, I do not.
For example, I do not know how Judge Roberts will approach cases challenging Congress’s power to enact vital national legislation. Now, I understand that terms like “Commerce Clause,” “Section 5 of the 14th Amendment,” and “Spending Clause” probably mean little to most Americans. Yet, however technical and legalistic discussions about these terms may be, they are critically important to how our government functions. A Justice with a limited view of Congressional power will undermine Congress’s ability to respond to national problems. For example, under the Commerce Clause, Congress can only regulate things that affect interstate commerce. When Congress enacted the Violence Against Women Act in 1996, it made numerous findings regarding how such violence affected interstate commerce. The Court, however, found those findings insufficient and struck down this important piece of legislation. When asked by Senator Specter whether he agreed with the Court in this case, Judge Roberts refused to answer. When asked whether he would have found similar congressional findings sufficient, Judge Roberts refused to answer. I believe those answers should have been forthcoming, particularly when they address how Judge Roberts would interpret Congress’s fundamental, constitutional powers.
Judge Roberts has shed some light on his view of the Commerce Clause because he wrote about it in a dissenting opinion on the D.C. Circuit. In Rancho Viejo v. Norton-the so-called “hapless toad case”-Roberts suggested that the Endangered Species Act, as applied to the California toads at issue, might be unconstitutional because they had an insufficient connection to interstate commerce. He also suggested that there might be other ways of looking at the case to preserve the Act’s constitutionality. When questioned about it during the hearings, Judge Roberts did not endorse one view or the other.
While his refusal to completely condemn the Endangered Species Act was somewhat reassuring, at the end of the day, I am left without any real understanding of how Judge Roberts will approach a Commerce Clause question. I have no idea whether he will undermine Congress’s ability to pass needed federal legislation. I have no idea how he will approach challenges to existing federal environmental laws, like the Endangered Species Act. Which of the possible approaches he laid out in Rancho Viejo does he believe is the most correct? This uncertainty creates a risk I am unwilling to accept when voting to confirm the next Chief Justice of the United States.
Another area of great concern to me is the area of privacy-an area where Judge Roberts skillfully answered a lot of questions without giving a hint as to his own legal positions. For example, while Roberts admitted that the Court has recognized that privacy is protected under the Constitution as part of the liberty in the Due Process Clause, he refused to give any indication of what he thought about the Court’s most recent privacy-related decisions.
The furthest he went was to say he had no quarrel with the decisions in Griswold and Eisenstadt, yet this kind of endorsement is hardly reassuring. In his confirmation hearings, Justice Thomas agreed that the Court had found a Constitutional right to privacy. Like Judge Roberts, he also stated that he had no quarrel with the Court’s holding in Eisenstadt. Yet when he got to the Supreme Court, Judge Thomas disavowed the very rights he had said the Constitution protected. In fact, more recently, in Lawrence v. Texas, Justice Thomas stated that he could not “find general right of privacy.” The bottom line is that I simply do not know how Judge Roberts will approach questions implicating our fundamental right to privacy.
In addition to what I do not know, what I do know about Judge Roberts is very troubling. I know that in the early 80’s while he worked in the Department of Justice and White House Counsel’s Office, Judge Roberts took an active role in advocating on behalf of Administration policies that would have greatly undermined our civil rights and civil liberties.
For example, Judge Roberts argued against using the “effects test” to determine whether section 2 of the Voting Rights Act was violated. Instead, he believed an “intent” test-requiring proof of a discriminatory motive-should be required, regardless of the fact that many victims of discrimination would be unable to prove a real discriminatory intent and therefore unable to enjoy the protections afforded by the Act. In some cases, the effect of Judge Robert’s intent test meant that disenfranchised individuals had to prove the motive of long dead officials who crafted the election rules. That is a foolish standard when it comes between citizens and their constitutionally protected right to fair representation in our democracy.
Judge Roberts also argued that the obligations imposed on educational institutions by Title IX should apply only to the specific program that received federal funding rather than to the whole institution. Again, by limiting the application of an important anti-discrimination law, Roberts’ position greatly undermined its purpose.
In the area of affirmative action, Judge Roberts argued in favor of limiting race-conscious remedies to instances where individuals were proven to be victims of identifiable acts of impermissible discrimination. And, he suggested that black applicants who were victims of discriminatory hiring practices should only be able to recover if they could demonstrate that they were more qualified than the white applicants they hired.
Mr. President, I realize that Judge Roberts took the positions I just described some time ago. And, I know he told the judiciary committee that he was simply advocating the views of the Administration at the time. Yet, I find it hard to believe that a staffer at Justice or in the White House Counsel’s office never wrote a memo that represented his views rather than the Administration’s positions. Particularly when the theme of those memos is consistent across the board: strict adherence to narrow principles of law despite their real world impact. And, particularly when some of the memos released from this time include acknowledgements by Judge Roberts that his own position failed to prevail in internal deliberations. That was certainly true when he argued unsuccessfully within the Administration that Congress could strip the federal courts of jurisdiction over abortion and desegregation cases.
I also believe that, given the extremely limited record made available to us, Judge Roberts had an obligation to explain those memos, explain his interpretative philosophy, and answer the committee’s legitimate questions in that area. In the absence of the Solicitor General memos, Judge Roberts had a responsibility to dispel the record available, and he did not do it.
Judge Roberts’ more recent positions trouble me as well, particularly his decision to join Judge Randolph’s decision in Hamdan v. Rumsfeld, the military tribunals case. That opinion gave the President unfettered and un-reviewable authority to place captured individuals outside the protections of the Geneva Convention. Six retired senior military officials with extensive experience in legal policy, the laws of war, and armed conflict, have filed a friend-of-the-court brief in the Supreme Court arguing that Hamdan must be overturned immediately because it directly endangers American soldiers.
I understand that Judge Roberts felt he could not discuss the case while it was pending before the Supreme Court, but, even when asked about his views of the scope of executive power unrelated to the Hamdan case, Judge Roberts was evasive. He did little more than describe the Court’s current framework for analyzing assertions of executive power. As a result, I do not know whether he believes that the state of war is a blank check for the President or whether he will closely scrutinize the legality of Executive Branch actions at all times. Given the fact that his Hamdan decision placed our troops at risk, I am forced to conclude that Judge Roberts’ future decisions may further threaten the security of our troops abroad and our citizens at home.
Now, some may argue that Democrats should vote for Judge Roberts because he is the best nominee we could expect from the Administration. I cannot vote to confirm the next Chief Justice of the United States simply because the next nominee to the Court may be even less protective of our fundamental rights and liberties or less dangerous to our national security. Frankly, I am not sure how I would make that determination given the limited record before me. Some may argue that Democrats should vote for Judge Roberts because of his resume. I, however, do not think that should be the test. A Supreme Court Justice needs more qualifications than an impressive resume. They need compassion and sensitivity. They need an understanding of the consequences of their decisions and how they further our democratic traditions.
As a Senator, I must consider each nominee as an individual and how he or she will fit into the current, closely divided Supreme Court. I have a duty to protect the fundamental rights that I believe our Constitution guarantees. I have a duty to preserve the incredible progress that has been made towards the realization of those rights for all Americans.
I have a duty to safeguard our national security, and to prevent the executive from using war as a blank check to violate both national and international law. John Roberts will be confirmed. I hope and look forward to decisions that will allay my concerns. He may author or join opinions protecting the rights which we hold so dear. And, I hope he does. But the questions I have raised, the absence of critical documents, and the lack of clarity surrounding fundamental issues like how he would interpret the Constitution require me to fulfill my Constitutional duties by opposing his nomination to be the next Chief Justice.
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