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.... than a "legal automaton."Roberts' Silence Rankles SenatorsThe patience of Senate Judiciary Committee members wore thin today as John Roberts continued refusing to answer questions. "Why this room should be a cone of silence is beyond me," said Sen. Schumer. "It's bothering a lot of people." Schumer then said that Roberts' stonewalling was making "this process…absurd." "You agree we should be finding out your philosophy and method of legal reasoning… but when we try to find out… what your philosophy means, we don't get any answers." Sen. Feinstein was pushed to wonder whether Roberts is anything more than a "legal automaton."Unanswered Questions
Roberts has so far dodged or refused to answer more than 100 questions. Among them:"Do you then believe that this implied right of privacy applies to the beginning of life and the end of life?" " said, "a woman's interest in having an abortion is a form of liberty protected by the Due Process Clause. Do you agree with that?"
"o you believe ... that the federal courts should become involved in end-of-life decisions?"
" have the power to terminate war?"
"Do you disagree with Justice Thomas' interpretation of the right to privacy in any decided case?"
"Do you have any concern about the constitutionality of the 1964 Civil Rights Act that outlawed racial discrimination in public accommodation, employment and other areas?"
" said, 'I believe in an America where the separation of church and state is absolute.' My question is, do you?"
Roberts displays insensitivity to Hispanics and immigrant rights
Roberts would not give a straight answer to Sen. Durbin's questions about whether he stood behind a 1982 memo in which he faulted the Reagan administration for not intervening in the case Plyler v. Doe to defend a Texas law denying undocumented immigrant children a public education. The Supreme Court overturned the law and Roberts complained that the administration should have defended it. As Sen. Durbin noted, if Roberts' view prevailed, the state "would have refused education to these children." Sen. Durbin tried to get Roberts to address the real-world consequences of the legal course he recommended, but Roberts repeatedly took refuge in the claim that he was just doing his job.
Roberts' unwillingness to comment on Plyler is especially disturbing following Roberts' condescending answer when asked by Sen. Schumer if he understood why some might find it offensive that Roberts' referred to undocumented people as "illegal amigos" in a 1983 memo. Roberts stated that when politicians address Hispanic audiences they typically "throw in some language in Spanish." A group of Latino leaders criticized Roberts response.
Roberts' nomination is opposed by the League of United Latin American Citizens and the Mexican American Legal Defense and Education Fund.
Privacy Rights
At one point Sen. Biden became so frustrated with Roberts' refusal to answer questions about the right to privacy that he told Roberts, "Without any knowledge of your understanding of the law, because you will not share it with us, we are rolling the dice ." Planned Parenthood on day three of the hearings announced its opposition to his nomination.
Sens. Feinstein and Schumer also pressed for answers about privacy, but Roberts' evasive responses and weak assurances sounded eerily similar to those of Justice Clarence Thomas during his confirmation hearings. Thomas has since voted to overturn Roe v. Wade, and dissented from the 2003 landmark ruling, Lawrence v. Texas, which held that the government cannot interfere with the private sexual activity of consenting adults. "Bottom line is," Sen. Schumer paraphrased, " unwilling to differentiate yourself from Justice Thomas's view on Lawrence."
Roberts answers questions selectively
Sen. Feingold called Roberts on his use of a double standard to decide which questions were off limits. Roberts answered questions from Republican Sen. Tom Coburn on the case of Hamdan v. Rumsfeld - which he had refused to discuss the day before when Feingold was asking the questions. "Yesterday, you refused to answer any questions regarding your conduct in the Hamdan v. Rumsfeld case… But today you answered questions from Senator Coburn regarding this matter." Many legal observers have argued that Roberts should have recused himself when this case came before the DC Circuit Court of Appeals because President Bush, whose administration was in the process of interviewing him as a potential nominee to the Supreme Court, was the defendant in the case.
Roberts attributes his own problematic views to the Reagan administration
Roberts has sought to distance himself from positions he took in the Reagan administration by claiming he was only acting as a staff attorney advancing the views of those he worked for. The record clearly refutes that claim, as PFAW documented with a fact sheet discussing 18 occasions on which Roberts was putting forth his own views, not merely those of the administration. Indeed, ultraconservative lawyer Bruce Fein, who served with Roberts in the Reagan Justice Department, has acknowledged that Roberts was among "a band of ideological brothers" and that the deeply held convictions that Roberts demonstrated "aren't principles that evaporate or walk away."
Among the examples PFAW cited, in addition to his memo on Plyler v. Doe, were several Roberts memos on court stripping, and one in which he mocked a suggestion by his superior Ted Olson that opposing court-stripping would be seen as courageous. Roberts wrote, "Real courage would be to read the Constitution as it should be read and not kowtow" to progressives and other who argued the contrary. In another example, Roberts supported a proposal to limit the types of federal financial assistance to students that would trigger Title IX's non-discrimination requirements even though not even the ultraconservative William Bradford Reynolds, who headed the Justice Department's civil rights division, agreed with his position.
White House continues to aid and abet Roberts' stonewalling
Stretching the limits of plausibility, Roberts also sought to distance himself from the views he advocated as principal deputy solicitor general under the first President Bush, including the assertion that "Roe was wrongly decided and should be overturned." This high-level position, which Roberts filled for more than three years during the first Bush administration, would never have been filled by someone who didn't share the ideology of the administration, but Roberts claims that his record from that time reflects the administration's views, not necessarily his own. And President Bush continues to aid and abet Roberts' stonewalling by rejecting senators' repeated requests for access to documents from this era. These solicitor general documents could tell us much about which views were Roberts' and which were the administration's, but, contrary to precedent, the White House is keeping these documents secret.
An Unmet Burden
"If John Roberts refuses to say whether he agrees with positions he took in the Reagan administration, and refuses to say whether he stands by positions he took in the Bush administration, and refuses to say what he believes now about basic constitutional principles, there is no way he can meet the burden of demonstrating a commitment to upholding Americans' constitutional rights and legal protections," said People For the American Way President Ralph G. Neas in response to today's hearings. "The right to remain silent does not apply to Supreme Court nominees. Judge Roberts is not under arrest, he's under consideration for the nation's top legal job. He's got to answer senators' questions."
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