Kennedy: No on Roberts

Senator Kennedy went to the Senate floor today to discuss the nomination of John Roberts and why he intends to vote no. I’ve included some excerpts of his remarks below, you can read it in its entirety here .

“Supporting or opposing nominees to the Supreme Court should not be a partisan question. In my 43 years in the United States Senate, I have supported more nominees for the Supreme Court by Republican presidents than by Democratic presidents.

But, there is clear and convincing evidence that John Roberts is the wrong choice for Chief Justice. I oppose the nomination, and I urge my colleagues to do the same.”

“The rule of law is not some mathematical formula for meting out justice. It is our values and ideals that give it real meaning – in the case of the Constitution, not our personal values and ideals, but our values and ideals derived from the meaning of the constitutional text.


We all believe in the rule of law. But that is just the beginning of the conversation when it comes to the meaning of the Constitution. The Constitution of Justice Scalia and Justice Thomas is a very different document from the Constitution of Justice Stevens and Justice Souter. Everyone follows the same text. That is the rule of law. But the meaning of the text is often imprecise. You must examine the intent of the Framers, the history, and the current reality. And this examination will lead to very different outcomes depending on each Justice’s constitutional world view. Is it a full and generous view of our rights and liberties and of government power to protect the people, or a narrow and cramped view of those rights and liberties and the government’s power to protect ordinary Americans?

Based on the record available, there is clear and convincing evidence that Judge Roberts’ view of the rule of law would narrow the protection of basic voting rights. The values and perspectives displayed over and over again in his record cast large doubts on his view of the validity of laws that remove barriers to equal opportunity for women, minorities, and the disabled. His record raises serious questions about the power of Congress to pass laws to protect citizens in matters they care about.

In fact, there is nothing in the record to indicate otherwise. For all the hoopla and all the razzle-dazzle, the record is no different in its bedrock substance than it was the day the hearings started.”

On the Voting Rights Act: “In the area of voting rights, he has a record of strong opposition to Section 2 of the Voting Rights Act, which is widely acknowledged by scholars and civil rights experts to be one of the most powerful and effective civil rights laws ever enacted. It outlaws voting practices that deny or dilute the right to vote based on race, national origin, or language minority status – and is largely uncontroversial today. Before it was passed, there had not been a single African-American elected since Reconstruction from seven of the southern states with the greatest of African American populations.

In fact, he pressed to keep others from changing their minds about opposing the law. When Assistant Attorney General for Civil Rights Brad Reynolds raised concerns about sending the Senate a letter on this issue, John Roberts urged the Attorney General to send it, stating that “my own view is that something must be done to educate the Senators on the seriousness of this problem . . . .” Of course, the problem he saw was the amendment, not the discrimination it was designed to end.

Both Senator Feingold and I tried to find out whether he came to agree with the strengthened Voting Rights Act after President Reagan signed it into law.

Even when Senator Feingold asked whether Judge Roberts would acknowledge today that he had been wrong to oppose the effects test, he refused to give a yes-or-no answer.

Senator Feingold asked: “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 the department was right in seeking to keep the intent test or whether time has shown that the effects test is really the more appropriate test.”

Judge Roberts responded, “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.”

So we still don’t know whether he supports the basic law against voting practices that result in denying voting rights because of race, national origin, or language minority status.

You don’t need to be a voting rights expert to say we’re better off today in an America where persons of color can be elected to Congress from any state in the country, as opposed to the America of 1982, in which no African American had been elected to Congress since Reconstruction from Mississippi, Florida, Alabama, North Carolina, South Carolina, Virginia, or Louisiana, because restrictive election systems effectively denied African Americans and other minorities the equal chance to elect representatives of their choice. In these states, African Americans were a third or more of the population, but they were effectively blocked from electing any candidate of their choice decade after decade throughout the twentieth century.

Yet Judge Roberts repeatedly refused to give even this simple reassurance about the Act. Is that what he means by the rule of law?”

On the Civil Rights Restoration Act:

Another very important area in which Judge Roberts refused to disavow his long history of opposition to civil rights is in the prevention of discrimination by recipients of federal funds. These laws were adopted because, Congress believed, as President Kennedy said in 1963, that “[s]imple justice requires that public funds, to which all taxpayers . . . contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in . . . discrimination.” As an assistant to Attorney General William French Smith, John Roberts argued that these important laws should be narrowed.

In fact, his position was even more extreme than the Reagan Administration’s. In 1981, he supported a recommendation to exempt institutions from civil rights laws if the only federal financial assistance they received was in the form of loans to their students. Under this view, the enormous subsidies the federal government gives colleges and universities in the form of federal financial aid would not have been enough to require them to obey the laws against discrimination.

At many private institutions, financial assistance to students was the only form of federal aid, so Judge Roberts’ suggestion would have left those institutions largely free to discriminate against women, the disabled, and minorities in both education and hiring.

In fact, Judge Roberts’s position was so extreme that it was rejected by the Reagan Administration and later by the Supreme Court. But in his testimony, Judge Roberts ignored this aspect of his record. He refused even to acknowledge that his past positions had gone beyond the Administration’s. Instead, he stated repeatedly that he was just doing his job.”

On Title IX:

“Another very important area in which Judge Roberts failed to give any reassurance was his position protecting women and girls against discrimination in educational programs under Title IX. In the case of Franklin v. Gwinnett County, in 1991, Judge Roberts argued that Title IX did not allow a high school girl who had been sexually abused by her teacher to recover damages. Judge Roberts’ argument would have left the victim with no remedy at all.

Senator Leahy asked him, “Do you now personally agree with and accept as binding law the reasoning of Justice White’s opinion in Franklin v. Gwinnett?” Judge Roberts replied that, “It certainly was a precedent of the court that I would apply under principles of stare decisis.”

That answer sounds reassuring, until you realize that Judge Roberts never answered whether he personally agreed with this unanimous decision of the Court.

Senator Leahy offered Judge Roberts several chances to disavow his position in the Franklin case. He asked, “Do you now accept that Justice White’s position [in Franklin v. Gwinnett County] was right and the government’s position was wrong?” Just Roberts replied again, “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.” That sounded reassuring, until I recalled that Justice Thomas repeatedly used the same words – “I have no quarrel with it” – to evade answers during his nomination hearing. Justice Thomas testified, for instance that he had “no quarrel” with the test established by the Supreme Court in Lemon v. Kurzman for analyzing claims under the First Amendment’s prohibition on the establishment of religion. But just two years later, Justice Thomas joined a dissent ridiculing the test and saying it should not be applied, and Justice Thomas has consistently opposed the Lemon test ever since.

I have to wonder why it was so difficult for Judge Roberts simply to say, “Yes, in hindsight, I personally believe that Franklin v. Gwinnett was correctly decided, and that victims of intentional sex discrimination in educational programs do have a right to relief under Title IX.” Why was that so difficult an answer for Judge Roberts to give? Could it be that it was contrary to his view of the rule of law?”

On Affirmative Action: “Judge Roberts’s record is also one of consistent and long-standing opposition to affirmative action. In the 1980s, he urged the Reagan Administration to oppose affirmative action. In the 1990s, in the administration of the first President Bush, he urged the Supreme Court to overturn a federal affirmative action program. In private practice in the late 1990s and as recently as 2001, he litigated cases challenging affirmative action. That includes his repeated challenges to the Department of Transportation’s disadvantaged business enterprise program, which has been upheld by every court that has reviewed it. On affirmative action, his view of the rule of law seems to be that established court precedents have little meaning, even though they have been found again and again to advance our progress on civil rights. In 1981, he advocated abolishing race- and gender-conscious remedies for discrimination, although he admitted this position was in “tension” with the Supreme Court’s opinion in United Steelworkers of America v. Weber, upholding affirmative action in employment – a case that had been decided only two years earlier. He wrote that the Administration did not see that opinion as a “guiding principle.” In the same memos dealing with the Weber decision, Judge Roberts even suggested that the opinion might be overturned because of changes in the Court’s composition.

Given his long and consistent opposition to affirmative action, Senators were entitled to seek some reassurance from the nominee that he would not use the power of the Chief Justice to continue his past efforts to end affirmative action.

I asked Judge Roberts, “Do you agree then with Justice O’Connor, writing for the majority, that gave great weight to the real-world impact of affirmative policies in universities?” He stated, “I can certainly say that I do think that that is the appropriate approach, without commenting on the outcome or the judgment in a particular case. But you do need to look at the real-world impact in this area and I think in other areas as well.” So he thinks that we should consider real world impact, but he never stated whether he agreed with Justice O’Connor that the University of Michigan case was correctly decided. On that issue, we don’t know any more than we did before the hearing.

Senator Feinstein also asked Judge Roberts his view of affirmative action, but he avoided her question as well. She asked, “Do you personally subscribe, not to quotas, but to measured efforts that can withstand strict scrutiny?” Judge Roberts replied, “A measured effort that can withstand strict scrutiny is…a very positive approach.” Well, that sounds as though he agrees, but then he also said, “And I think people will disagree about exactly what the details should be.”

When Senator Feinstein stated she specifically wanted to know his view of Grutter v. Bollinger, the University of Michigan case upholding affirmative action, Judge Roberts gave a long answer that was no answer at all. “In the Michigan case, obviously, you have – I always forget whether it’s the law school— but I think the law school program was upheld and the university program was struck down because of the differences in the program. But efforts to ensure the full participation in all aspects of our society by people, without regard to their race, ethnicity, gender, religious beliefs, all those are efforts that I think are appropriate.”

But of course, Senator Feinstein had not asked about efforts to ensure participation without regard to race. She’d asked his view on a particular affirmative action program at the University of Michigan Law School that took race into account. We still don’t know whether he agrees with that important Supreme Court decision, and his refusal to tell us is very troubling.”

“No one is entitled to become Chief Justice of the United States. The confirmation of nominees to our courts – by and with the advice and consent of the Senate – should not require a leap of faith. Nominees must earn their confirmation by providing us with full knowledge of the values and convictions they will bring to decisions that may profoundly affect our progress as a nation toward the ideal of equality.

Judge Roberts has not done so. His repeated allegiance to the rule of law reveals little about the values he would bring to the job of Chief Justice of the United States. The record we have shows a clear hostility to our progress toward our common American vision of equal opportunity for all of our citizens.

Supporting or opposing nominees to the Supreme Court should not be a partisan question. In my 43 years in the United States Senate, I have supported more nominees for the Supreme Court by Republican presidents than by Democratic presidents.

But, there is clear and convincing evidence that John Roberts is the wrong choice for Chief Justice. I oppose the nomination, and I urge my colleagues to do the same.”

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3 Responses to Kennedy: No on Roberts

  1. Marjorie G says:

    “The rule of law is not some mathematical formula for meting out justice. It is our values and ideals that give it real meaning – in the case of the Constitution, not our personal values and ideals, but our values and ideals derived from the meaning of the constitutional text.”

    There is always opinion of literal text, be it the Consitution or the Bible, and the other side has been justifying some selfish, intolerant and greedy interpretion of both, revealing their values.

  2. Ginny in CO says:

    Thanks Crystal, Kennedy and Kerry have both made strong cases – in their own words.
    The final count will be very interesting.

  3. Crystal

    Thank you so much for sharing this statement from Senator Kennedy here with us!