John Roberts: Same Old Story
Feature Story by civilrights.org staff - 9/16/2005
Civil rights groups say that in four days of hearings, Supreme Court nominee John Roberts has failed to meet his burden of showing that his record from his days as a legal advisor in the Reagan and Bush I administrations doesn't represent his views today.Instead, advocates say, Roberts ducked specific answers to questions that might give the American people an understanding of whether he would protect fundamental rights and freedoms.
It's a scenario that seems all too familiar to many.
While Roberts opened his testimony by declaring "I have no agenda," advocates note that both Clarence Thomas and Antonin Scalia made the same claim during their hearings.
Nominee Thomas told Sens. Howard Metzenbaum, D. Ohio, and Dennis DeConcini, D. Ariz., "I have no agenda."
Responding to Sen. Ted Kennedy, D. Mass, nominee Antonin Scalia said, "I assure you I have no agenda."
Advocates say there is no question that once on the Court, both justices embraced an extreme ideological agenda.
On other occasions, Roberts told senators "I have no quarrel with" past cases and settled judicial opinions.
Saying this was another way to evade hard questions, advocates point out that past nominees have used those exact, same words - and have then gone on the Court and undermined those precedents.
Nominee Clarence Thomas, discussing the Court's decision in the case that extended the right to access contraception to single individuals, told Sen. Joseph Biden, D. Del., in 1991, "I don't quarrel with the decision in Eisenstadt v. Baird."
As Supreme Court Justice, in Lawrence v. Texas, Thomas rejected any general right of privacy in the Constitution.
Nominee Thomas told Sen. Herb Kohl, D. Wisc., in 1991, "the Court has established the Lemon test to analyze the Establishment Clause cases and I have no quarrel with that test." As Supreme Court Justice, Thomas joined a dissent in Lamb's Chapel v. Center Moriches Union Free Sch. Dist. in ridiculing the Lemon test, which is the operative standard used to by courts to decide church-state cases currently supported by five Justices, including Justice Sandra Day O'Connor, who Roberts was originally named to replace.
Advocates don't find credible Roberts' explanation that he was a "staff lawyer," merely advancing the views of those for whom he worked. Rather, they say, the documents produced so far show that Roberts was setting forth his own views.
They point to a 1981 document from Roberts on the Voting Rights Act advocating the position that plaintiffs must prove not just that a state or local law had a discriminatory effect on the right to vote, but that there was an intent to discriminate. The document states, "My own view is that something must be done to educate the Senators on the seriousness of this problem [presented by the effects test.]"
In a 1985 memo on whether federal funding for one university program would require the whole university to comply with anti-discrimination laws, Roberts wrote, "There is a good deal of intuitive appeal to the argument. Triggering coverage of an institution on the basis of its accepting students who receive Federal aid is not too onerous if only the admissions program is covered....I do not think the Administration can revisit the issue at this late date."
When he was asked to review the proposal by the Department of Education to redefine and cut back on the definition of "federal financial assistance" under the Title IX regulations, with the result that certain financial aid to students would not trigger Title IX coverage at all, Roberts wrote in a 1981 memo, "I recommend acceding to it."
In testimony Thursday before the Senate Judiciary Committee, Wade Henderson, executive director of the Leadership Conference on Civil Rights (LCCR), said that in his testimony, Roberts had "failed to distance himself from the anti-civil rights positions he has advocated" and therefore LCCR was compelled to oppose his confirmation.
