The Committee met, pursuant to notice, at 9:30 a.m., in room SH-216, Hart Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. Present: Senators Specter, Hatch, Grassley, Kyl, DeWine, Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
Chairman SPECTER: “It is 9:30. The confirmation hearing of Judge Roberts will now proceed. Welcome again, Judge Roberts.”
Judge ROBERTS: “Thank you, Mr. Chairman.”
Chairman SPECTER: “We begin the first round of questioning in order of seniority, with 30 minutes allotted to each Senator… Senator Kennedy?”
Senator KENNEDY: “Thank you. Thank you, Mr. Chairman…
“The stark and tragic images of human suffering in the aftermath of Hurricane Katrina 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 by African-Americans who are forced by poverty, illness, and 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 the 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 am not talking about a handout, but a hand up, to give all our citizens a fair shot at the American dream.
“Judge Roberts, today we want to find out how you view the Constitution and 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 is why it is so important, and I hope we will receive your frank and candid and complete responses to the questions we ask today.
“To start my inquiry, I want to discuss with you the Brown v. Board of Education case, which you have already mentioned this morning, which I believe is the most important civil rights decision in our lifetime. In Brown, decided in 1954, the year before you were born, the Supreme Court concluded unequivocally that black children have the constitutional right to be educated in the same classrooms as white students. The Court rejected the old doctrine of separate but equal, finding that it violated the Equal Protection Clause of the 14th Amendment.
“In considering the issues raised by Brown, the Court took a broad and real-life view of the question before it. It asked, whether the segregation of children in public school solely on the basis of race, even though physical facilities and other tangible factors may be equal, deprives the children of the minority group of equal educational opportunities. Do you agree with the Court’s conclusion that the segregation of children in public school solely on the basis of race is unconstitutional?”
Judge ROBERTS: “I do.”
Senator KENNEDY: “And do you believe that the Court had the power to address segregation of public schools on the basis of the Equal Protection Clause of the Constitution?”
Judge ROBERTS: “Yes.”
Senator KENNEDY: “And you are aware that Brown was a unanimous decision?”
Judge ROBERTS: “Yes. That was the—represented a lot of work by Chief Justice Earl Warren, because my understanding of the history is that it initially was not and he spent—it was reargued. He spent a considerable amount of time talking to his colleagues and bringing them around to the point where they ended up with a unanimous Court.”
Senator KENNEDY: “And a lot of work by the plaintiffs, as well.”
Judge ROBERTS: “I’m sure.”
Senator KENNEDY: “First, in reaching its decision, the Court concluded that it must consider public education in the light of its full development and its present place in American life throughout the Nation, that is that it must consider the conditions and impact of its decision in the real present-day world. The Court specifically declined to rely on the legislative history of the 14th Amendment. It looked instead to the facts and situation as they existed in the case and in the world at the time of the decision.
“Judge Roberts, do you agree that the Court was correct in basing its decision on real world consideration of the role of public education at the time of its decision, rather than the role of public education in 1868, when the 14th Amendment was adopted?”
Judge ROBERTS: “Certainly, Senator. The importance of the Court’s approach in Brown is, of course, to recognize that the issue was whether or not the discrimination violated equal protection, and you have to look at the discrimination in the context in which it is occurring. I know there has been a lot of recent academic research into this, the original intent of the drafters of the 14th Amendment. Professor McConnell’s piece suggests that it’s perfectly consistent with the conclusion in Brown, and it also, for the very point you mentioned, was an important one, that the nature of the institution of public education wasn’t formed to the same extent at the time of the drafting—”
Senator KENNEDY: “In 1868, that is right.”
Judge ROBERTS: “—yes, as it was at the time of the decision.”
Senator KENNEDY: “The Brown Court also held that it was important to look at the effects of segregation on public education. The Court determined that education was so vital to a child’s development and opportunity for advancement in society, where the State had undertaken to provide public education, it must be available to all on equal terms. Thus, it found that the separate education was inherently unequal. So, is it fair for me to conclude you accept both the holding and the reasoning in the Brown case?”
Judge ROBERTS: “Well, the reasoning, though, I think it’s important, is focused on the effects, yes, but the conclusion was that they didn’t care if the effects were equal. In other words, the genius of the decision was the recognition that the act of separating the students was where the violation was and it rejected the defense, certainly just a theoretical one given the actual record, that you could have equal facilities and equal treatment.
“I think the conclusion, if the record had shown—which it did not—if it had shown perfectly equal treatment in the African- American school and in the white school, then Chief Justice Warren’s analysis would be the same because the act of separation is what constituted the discrimination.”
Senator KENNEDY: “If we could move on now, the Brown decision was just the beginning of the historic march for progress towards equal rights for all of our citizens. In the 1960s and 1970s, we came together as a Congress, Republicans and Democrats alike, and passed the historic civil rights legislation that was signed by the President to guarantee equality for all of our citizens on the basis of race, then on gender, then on disability.
“We passed legislation to eliminate the barriers to voting that so many minorities had faced in too many States in the country. We passed legislation that prevented racial discrimination in housing.
“Those landmark laws were supported by Republicans and Democrats in Congress, and they were signed into law by both Republican and Democratic Presidents. Intelligent and dedicated attorneys in the Justice Department and in the White House and on Capitol Hill devoted their extraordinary talents and imagination and perseverance to making these laws effective. Every one of the new laws was tested in court all the way to the Supreme Court, and I would like to find out, Judge Roberts, whether you would agree that the progress that we made in civil rights over the past 50 years is irreversible.
“I would like to find out whether you think that these laws are constitutional or whether you have any concerns or questions about them. Do you have any concerns or reservations about the constitutionality of the 1964 Civil Rights Act that outlawed racial discrimination in public accommodations, employment, and other areas?”
Judge ROBERTS: “I don’t think any issue has been raised concerning those. You know, I’m cautious, of course, about expressing an opinion on a matter that might come before the Court. I don’t think that’s one that’s likely to come before the Court, so I’m not aware of any questions that have been raised concerning that, Senator.”
Senator KENNEDY: “So, I’ll assume that you don’t feel that there are any doubts on the constitutionality of the 1964 Act. Do you have any doubts as to the constitutionality of the 1965 Voting Rights Act?”
Judge ROBERTS: “That’s an issue, of course, as you know, it’s up for renewal and that is a question that could come before the Court. The question of Congress’s power, again, without expressing any views on it, I do know that it’s going to be—”
Senator KENNEDY: “That’s gone up and down the Supreme Court, the 1965 Act and again the 1982 Act extension.”
Judge ROBERTS: “Yes, and the issue would be—”
Senator KENNEDY: “I am just trying to find out, on the Voting Rights Act, whether you have any problem at all or are troubled by the constitutionality of the existing Voting Rights Act that was extended by the Congress—”
Judge ROBERTS: “Oh, well, the existing Voting Rights Act, the constitutionality has been upheld—”
Senator KENNEDY: “Okay.”
Judge ROBERTS: “—and I don’t have any issue with that. There is a separate question that would be raised if the Voting Rights Act were extended, as I know Congress is considering, and those arguments have been raised about whether or not particular provisions should be extended or should not be extended, and since those questions might well come before the Court, I do need to exercise caution on that.”
Senator KENNEDY: “But with regards to the bipartisan Act that we passed, your position on the 1982 Act, I know you had concerns, and I am going to come back to those, but you are not suggesting that there is any constitutional issue with that?”
Judge ROBERTS: “Well, I’m not aware of any constitutional issue that’s been raised about it.”
Senator KENNEDY: “All right.”
Judge ROBERTS: “But again, I don’t want to express conclusions on hypothetical questions, whether as applied in a particular case, whether there would be a challenge in that respect. Those cases come up all the time—”
Senator KENNEDY: “All right.”
Judge ROBERTS: “—and I do need to keep—avoid expressing an opinion on those issues.”
Senator KENNEDY: “Well, it seems that on voting rights, with all of its importance and significance, and with the extraordinary bipartisan balance that came together on that Act, I am going to come back to it. I know you had some reservations about it, which we will come to. But that, I am wondering whether you are hesitant at all in saying that you believe that it is constitutional.”
Judge ROBERTS: “My hesitancy, Senator, is simply this, that cases do come up—I had one in the D.C. Circuit—concerning issues under the Voting Rights Act—”
Senator KENNEDY: “All right.”
Judge ROBERTS: “—and I don’t know what arguments parties will be raising in those cases. So an abstract question, you need to know obviously what is the claim, what is the issue, and decide it according to the rule of law.”
Senator KENNEDY: “How about the constitutionality of the 1968 Fair Housing legislation that outlaws racial discrimination in housing?”
Judge ROBERTS: “Again, I think that my understanding is it’s been upheld and I’m not aware of any issues that are arising under it. I suppose if there’s a particular claim that’s entered under that statute, litigants make all sorts of arguments and they may raise an argument that it’s unconstitutional as applied in a particular case and the court would have to decide that question.”
Senator KENNEDY: “Well, I was sort of aiming your answer to my friend, Orrin Hatch, about the power of the legislature and the deference that you are going to give when the legislature makes judgments and findings, particularly in the areas of voting, that we spend such an extraordinary amount of time. The Chairman was so involved in that legislation.
“Let us go to the Voting Rights Act. As you know, we have had a chance to go through many of the documents that you authored during the early and mid-1980s when you worked in the Department of Justice and in the White House and I am deeply troubled. Let me point out that we don’t have all the documents that we would like to have. I am working with the documents that we do have and I want to go through those, get your reactions, and ask your views today.
“I am deeply troubled by the narrow and cramped, and perhaps even a mean-spirited view of the law that appears in some of your writings. In the only documents that have been made available to us, it appears that you did not fully appreciate the problem of discrimination in our society. It also seems that you were trying to undo the progress that so many people had fought for and died for in this country.
“At the outset, I want to be clear that I do not think, nor am I suggesting, that you are a person who is in favor of discrimination. I don’t believe that. I am concerned, however, that at the time you were writing these laws and memoranda and notes, you simply did not grasp the seriousness of the impact of discrimination on our country as a whole.
“Let’s start with the Voting Rights Act. Most Americans think that the right to vote is among the most important tools that they have to participate in our democracy. You do agree, don’t you, Judge Roberts, that the right to vote is a fundamental constitutional right?”
Judge ROBERTS: “It is preservative, I think, of all the other rights. Without access to the ballot box, people are not in the position to protect any other rights that are important to them. And so I think it’s one of, as you said, the most precious rights we have as Americans.”
Senator KENNEDY: “And you will recall that in the 1960s, millions of our fellow citizens were denied access to the voting booth because of race, and to remedy that injustice, Congress passed the Voting Rights Act of 1965 that outlawed discrimination in voting. Section 2 of that Act is widely believed to be the most effective civil rights statute enacted by Congress.
“In 1982, Congress took action to extend the Voting Rights Act and to make it clear that discriminatory voting practices and procedures are illegal if they are intended to be racially discriminatory or if they are shown to have a racially discriminatory impact. It was this latter prohibition, the prohibition against voting practices that have a discriminatory impact, that provoked your heated opposition, Judge Roberts.
“In our earlier discussion of Brown v. Board of Education, you agreed that the actual impact of racial segregation on public education and school children was perfectly valid for the Court to consider, but when it came to voting rights, you rejected the consideration of actual impact. You wrote that violations of Section 2 of the Voting Rights Act, and I quote, ‘should not be made too easy to prove since they provide a basis for the most intrusive interference imaginable by Federal courts into State and local processes.’
“You also wrote, and I quote, ‘it would be difficult to conceive of a more drastic alteration of local government affairs, and under our Federal system such an intrusion should not be too readily permitted.’
“And you didn’t stop there. You concluded that Section 2 of the Voting Rights Act was, quote, ‘constitutionally suspect and contrary to the most fundamental tenets of the legislating process on which the laws of this country are based.’
“I am deeply troubled by another statement that you made at the time, and I quote, ‘there is no evidence of voting abuses nationwide supporting the need for such a change.’ No evidence? I was there, Judge Roberts, both the House and the Senate had the extensive hearings. We considered detail-specific testimony from affected voters throughout the country.
“But you dismissed the work of Congress out of hand. ‘Don’t be fooled,’ you wrote, ‘by the House vote or the 61 Senate sponsors of the bill. Many members of the House did not know that they were doing more than simply extending the Act, and several of the 61 Senators have already indicated they only intended to support a simple extension.’
“Judge Roberts, Republicans and Democrats overwhelmingly supported this legislation, but you thought we didn’t really know what we were doing. Newt Gingrich and James Sensenbrenner voted for the House bill. Dan Quayle was an original Senate cosponsor of the bill. We held extensive hearings, created a lengthy record, yet you thought there was no evidence of voting abuses that would justify the legislation.
“Your comment? Do you believe today that we need Federal laws to assure that all our citizens have the equal access to the voting booth, and do you basically support the 1982 Voting Rights Act signed by President—”
Judge ROBERTS: “Senator, you will recall at the time of the this was 23 years ago. I was a staff lawyer in the Justice Department. It was the position of the Reagan administration for whom I worked, the position of the Attorney General for whom I worked, that the Voting Rights Act should be extended for the longest period of its extension in history without change. The Supreme Court had interpreted in the Mobile v. Bolden case, Section 2 to have an intent test, not an effects test.
“Keep in mind, of course, as you know very well, Section 5, the pre-clearance provision, had always had an effects test, and that would be continued. The reference to discrimination nationwide was addressing the particular point that the effects test had been applied in particular jurisdictions that had a history of discrimination and the question is whether or not there was a similar history of discrimination that supported extending the effects test in Section 2.
“It was the position of the administration for which I worked that the proposal was to extend the Voting Rights Act without change. Your position at the time was that the intent test that the Supreme Court had determined was in Section 2 should be changed to the effects test, and that was the position that eventually prevailed.
“There was no disagreement—”
Senator KENNEDY: “Judge Roberts, the effects test was the law of the land from the Zimmer case to the Mobile case. It was the law of the land.”
Judge ROBERTS: “Senator— “
Senator KENNEDY: “That was the law of the land. Court after court decided about the impact of the effects test. The Mobile case changed the Zimmer case.”
Judge ROBERTS: “Well, Senator, you disagree—”
Chairman SPECTER: “Senator, let him finish his answer.”
Senator KENNEDY: “Okay. Well, I would just like to get his view of whether the Zimmer case was not the holding and the law of the land prior to the Mobile case.”
Judge ROBERTS: “Well, this is the same debate that took place 23 years ago on this very same issue, and the administration’s position—you think the Supreme Court got it wrong in Mobile v. Bolden.“
Senator KENNEDY: “No, that’s not what I think. It was wrong, but I also think the law of the land decided in the Zimmer case upheld in court after court after court after court was the effects test.”
Judge ROBERTS: “Well, and the Supreme Court—”
Senator KENNEDY: “And that is all—”
Chairman SPECTER: “Let him finish his answer, Senator Kennedy.”
Judge ROBERTS: “The point is, and again, this is revisiting a debate that took place 23 years ago—”
Senator KENNEDY: “Well, I am interested today in your view. Do you support the law that Ronald Reagan signed into law and that was cosponsored overwhelmingly by the—”
Judge ROBERTS: “Certainly. And the only point I would make, this is the same disagreement and the same debate that took place then over whether the Court was right or wrong in Mobile v. Bolden, and the point I would make is two-fold, that those like President Reagan, like Attorney General Smith, who were advocating extension of the Voting Rights Act without change, were as fully committed to protecting the right to vote as anyone.”
Senator KENNEDY: “Could I—”
Chairman SPECTER: “Let him finish his answer, Senator Kennedy.”
Judge ROBERTS: “And the articulation of views that you read from represented my effort to articulate the views of the administration and the position of the administration for whom I worked, for which I worked, 23 years ago.”
Senator KENNEDY: “Well, after President Reagan signed it into law, did you agree with that position—”
Judge ROBERTS: “I certainly—”
Senator KENNEDY: “—of the Administration?”
Judge ROBERTS: “I certainly agreed that the Voting Rights Act should be extended. I certainly agreed that the effects test in Section 5 should be extended. We had argued that the intent test—that the Supreme Court recognized in Mobile v. Bolden—I know you think it was wrong, but that was the Supreme Court’s interpretation—should have been extended. Again, as you said, the compromise that you and Senator Dole worked out was enacted into law and signed into law by President Reagan and the Voting Rights Act has continued to be an important legislative tool to ensure that most precious of rights which is preservative of all other rights. There was never any dispute about that basic proposition. “
Senator KENNEDY: “Well, what I am getting to is after it was overwhelmingly passed by the House and the Senate, signed into law, we have the memorandum that you said the fact we were burned last year—this is the following year, because we did not sail in with the new voting rights legislation does not mean we will be hurt this year if we go slowly on housing legislation. What did you mean when you said that we were burned last year by not getting the Voting Rights Act?”
Judge ROBERTS: “Well, I think the legislative debate between those who favored extending the Voting Rights Act as is and those who favored changing the Act because they disagreed with the Supreme Court decisions, the legislative judgment was that the administration’s proposal didn’t succeed because they had waited— rather than coming out in favor of an extension right away, they waited for the Congress to come up with its proposals which turned out to be different than the administration proposals.
“On the housing discrimination, I would note that the administration did get its ducks in a row, and in a matter of months after the date of the memo that you just read from had its housing proposal there and submitted to Congress and it was enacted.”
Senator KENNEDY: “Nineteen Eighty-Eight Fair Housing Act.”
Judge ROBERTS: “The administration’s proposal was submitted, I believe, months after the date of the memo that you read from.”
Senator KENNEDY: “Let me, if I could, go to the Civil Rights Restoration Act. In 1981, you supported an effort by the Department of Education to reverse 17 years of civil rights protections at colleges and universities that receive Federal funds. Under the new regulations, the definition of Federal assistance to colleges and universities would be narrowed to exclude certain types of student loans and grants so that fewer institutions would be covered by the civil rights laws. As a result, more colleges and universities would legally be able to discriminate against people of color, women, and the disabled.
“Your efforts to narrow the protection of the civil rights laws did not stop there, however. In 1984, in Grove City v. Bell, the Supreme Court decided, contrary to the Department of Education regulations that you supported, that student loans and grants did, indeed, constitute Federal assistance to colleges for purposes of triggering civil rights protections.
“But in a surprising twist, the Court concluded that the non-discrimination laws were intended to apply only to the specific program receiving the funds and not to the institution as a whole.
“Under that reasoning, a university that received Federal aid in the form of tuition could not discriminate in admissions, but was free to discriminate in athletics, housing, faculty hiring, and any other programs that did not receive the direct funds. If the admissions office didn’t discriminate, if they got the funds through the admissions office, they could discriminate in any other place of the university.
“A strong bipartisan majority in both the House and the Senate decided to pass another law, the Civil Rights Restoration Act, to make it clear that they intended to prohibit discrimination in all programs and activities of a university that received Federal assistance. You vehemently opposed the Civil Rights Restoration Act. Even after the Grove City Court found otherwise, you still believed that there was—and this is your quote—’a good deal of intuitive appeal to the argument that Federal loans and grants to students should not be viewed as Federal financial assistance to the university.’ You realize, of course, that these loans and grants to the students were paid to the university as tuition. Then even though you acknowledged that the program-specific aspect of the Supreme Court decision was going to be overturned by the congressional legislation, you continued to believe that it would be ‘too onerous’ for colleges to comply with nondiscrimination laws across the entire university unless it was ‘on the basis of something more solid than Federal aid to students.’
“Judge Roberts, if your position prevailed, it would have been legal in many cases to discriminate in athletics for girls, women; it would have been legal to discriminate in the hiring of teachers; it would have been legal not to provide services or accommodations to the disabled.
“Do you still believe today that it is too onerous for the Government to require universities that accept tuition payments from students who rely on Federal grants and loans not to discriminate in any of their programs of activities?”
Judge ROBERTS: “No, Senator, and I did not back then. You have not accurately represented my position.”
Senator KENNEDY: “These are your words.”
Chairman SPECTER: “Let him finish his answer.”
Judge ROBERTS: “Senator, with respect—”
Chairman SPECTER: “You had quite a long—”
Judge ROBERTS: “—you have selected—”
Chairman SPECTER: “Wait a minute, wait a minute. Senator Kennedy just propounded a very, very long question. Now, let him answer the question.”
Judge ROBERTS: “Senator, you did not accurately represent my position. The Grove City College case presented two separate questions, and it was a matter being litigated, of course, in the courts. The universities were arguing that they were not covered at all by the civil rights laws in question simply because their students had Federal financial assistance and attended their universities. That was their first argument.
“The second argument was, even if they were covered, all that was covered was the admissions office and not other programs that themselves did not receive separate financial assistance.
“Our position, the position of the administration—and, again, that was the position I was advancing. I was not formulating policy. I was articulating and defending the administration position. And the administration’s position was, yes, you are covered if the students receive Federal financial assistance, and that the coverage extended to the admissions office. That was the position that the Supreme Court agreed with. We were interpreting legislation. The question is: What is the correct interpretation of the legislation? The position that the administration advanced was the one I have just described. The universities were covered due to Federal financial assistance to their students. It extended to the admissions office.
“The Supreme Court in the Grove City case agreed with that position. So the position the administration had articulated, the Supreme Court concluded, was a correct interpretation of what this body, the Congress, had enacted.
“Congress then changed the position about coverage, and that position was, I believe, signed into law by the President and that became the new law. The memo you read about Secretary Bell’s proposal, if I remember it, was, well, he said, if we’re going to cover all of the universities, then we shouldn’t hinge coverage simply on Federal financial assistance. And the position I took in the memorandum was that, no, we should not revisit that question. We should not revisit the question that Federal financial assistance triggers coverage.”
Senator KENNEDY: “I have the memo here. I have 22 seconds left. And your quote is this, ‘If the entire institution is to be covered, however, it should be on the basis of something more solid than Federal aid to the students.’ I think most of the Members of the Congress feel that if the aid to the universities, tuition, loans and grants are going to be sufficient to trigger all of the civil rights laws—your memorandum here, ‘If the entire institution is to be covered, however, it should be on the basis of something more solid than Federal aid to the students.’ That is your memorandum.”
Judge ROBERTS: “Well, Senator, again, the administration policy was as I articulated it, and it was my job to articulate the administration policy.”
Senator KENNEDY: “My time is up, Mr. Chairman.”
Chairman SPECTER: “Yes, thank you very much, Senator Kennedy. This is a good time for a 15-minute break.”