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Can you guess the senator?

By Marion Edwyn Harrison
web posted September 19, 2005

Here is the full text of the questioning on September 14, 2005 of Judge John G. Roberts, Jr. by a very senior United States Senator, who, incredulous though it may appear, is a licensed attorney (although rumored to have graduated last in his law-school class). Presumably some bright staffer, or perhaps somebody from one of the leftist organizations the Senator cites, wrote the questions before the Senator mangled them. Judge Roberts, of course, answered entirely from memory. What a contrast! (The text is as broadcast. Hence, punctuation and paragraphs are supplied. I avoid inserting all the sic notices, or other indicia of error, which would be necessary were we to endeavor to correct the grammar or syntax or merely to make sense of some of the questioner's verbiage. We also omit "ums" and "ahs." The Senator's reference to "French Smith" refers to William French Smith; his reference to "Brad Reynolds" as Attorney General refers to William Bradford Reynolds, who never was Attorney General. We do not attempt to discern, much less correct, any other error.)

SENATOR ("USS"): I would like to, if we could, come back in the time that I have now, and perhaps in a follow-up round, to the issue on civil rights. Because as been mentioned here by others, it is the overarching issue, I think, for our country and our society.

I think our Founders didn't get it right at the time of the drafting of the Constitution. We've had a Civil War. This country went through an extraordinary period of time, led by Dr. King in the 1950s, and then we had that extraordinary moment of Dr. King here at the Lincoln Memorial, which I think touched the conscience of the nation, people from all over the country.

We were stuck for months on the 1964 Act, as you probably remember, and then with the action that was taken by Everett Dirksen that opened up the possibilities for reaching a compromise on the public accommodation provisions.

We spent eight hours, a number of us in the Judiciary Committee, with Nick Katzenbach over in the Capitol office, and had an agreement at that time there would be no amendments on the public accommodations; we could amend other provisions when the legislation went forward. And was monumental in its importance and consequence.

Then we came back and realized after that that the most important legislation that we could probably address - we still had a ways to go on housing and employment, although employment was included in the ‘64 Act, but not to a great extent - was in the Voting Rights Act.

And we had extensive hearings. And during the course of those hearings by this Committee - other committees, as well - we listened to Attorney General Katzenbach, who had been working with Senator Dirksen - really the architect, leadership of President Johnson, certainly, but the architect of the ‘64 Act.

And he testified before this Committee about the Section 2 provisions. And in his testimony on the Section 2 provisions, he said, Section 2 applies to any voting practice or procedure if its purpose or effect was to deny or abridge the right to vote on account of race or color. So for many of us, including the civil rights community, believed that the effects test was operative at that time. That bill passed the House by 333 - 85, 77 - 19.

The next thing that happened is we had the series of tests, as you recall. And the overarching test case was the Zimmer case, but we had a number of cases - Zimmer v McKeithen. And it was the Fifth Circuit, en banc, that dealt with the whole range - for the most part - range of states where many of these challenges had existed, although I certainly recognize we have a long ways to go in my own State of Massachusetts. But this Court en banc effectively in the Zimmer case; it was the lead case on the effects test. And that was followed by a series of cases - U. S. v Post, Kendrick v Walder - for a long period of time. You're aware of this history?

John RobertsJUDGE ROBERTS ("JGR"): I'm remembering it from when we addressed this debate of 23 years ago.

USS: But it sounds familiar? Then we went up to 1980 and we had the Mobile case which effectively put the intent test in. And after the Mobile case, as you well remember, the Justice Department dropped a whole series of cases that had been prepared under the effects test because they did not believe that they could make the case on the intent test - whole series. And this sent a very powerful message to individuals across the South, other parts of the country, that the additional kind of a burden to demonstrate intention was going to be so substantial, it was going to make, in terms of resources, and to try and determine the intent of individuals that lived many years ago, to virtually be prohibitive. That happened. The Justice Department dropped scores of cases.

And it was one of the important reasons that the civil rights community and many of us believed that it was so important at the time of the extension of the voting rights case in 1982 that we put the effects test in. You believed, as I remember, and we have gone over, that it should have been a restatement of the existing law, as you correctly stated yesterday, which was the intent test. Am I correct so far?

JGR: That was the Administration's position.

USS: The Administration's position. I remember French Smith testifying before this Committee to that effect. I remember at that particular time. Every civil rights group in 1982 included the effects test. This is the NAACP Legal Defense, National Urban League, Lawyers Committee on Civil Rights Under Law, Conference on Civil Rights, Mexican - American Legal National Council of Raza, League of United Latin American Voters, League of Women Voters - the list goes on - Congressional Black Caucus.

And the House went ahead and passed the legislation with the effects test by 389 - 24, 389 - 24. And in that legislation, the legislation included language which reflected the concern of the Administration about whether the intent test was going to lead to either proportional representation or to quotas. That language was included in the House legislation that passed. And it included the fact that members of a minority group have not been elected in numbers equal to the group's proportion of the population, should not, and in and of itself a constitutional violation of this section. This addressed, for all intents and purposes, the concerns that the Administration, I thought, and most of us - the civil rights community - thought that they had with regard to the issue of proportional representation. You roughly remember that or aware without . . .

JGR: I certainly remember the provision in the House bill at the time.

USS: So we also, now, included that language in the Senate bill. Now, the House bill passed. The Senate bill had 61 co-sponsors prior to the time that we adopted the Dole Amendment. That legislation was on its way. That legislation was good as done, quite frankly. The Dole Amendment was effectively a restatement of what was in the House bill, and it had been included. But the Administration, after that, said: Well, if they're going to include that as the Dole Amendment, we will let up in our opposition and we'll eventually support it.

Now, during the time after the passage of the House bill and prior to the passage of the Senate bill, you - even though the House had passed it - you still strongly maintained the Administration's position, did you not?

JGR: Well, I was still working for the Administration, Senator.

USS: OK.

JGR: President Reagan's position was to extend the Act without change, as you mentioned. That was the Attorney General's position. I was Special Assistant to the Attorney General and I was doing my best to implement their views and support their views.

USS: In your memoranda that was to the Attorney General, Brad Reynolds, now - the Administration after the House bill, I think the history will show it, thought that the Administration should alter its position. Your memoranda said: Brad Reynolds has expressed some reservation about circulating any written statement on the question to the Hill. My own view is that something must be done.

Maybe that's a staffer, but it's separating yourself from Brad Reynolds, who was the leader on this issue at the time. Then you . . .

JGR: Well, with respect, Senator, my understanding - and I've looked at that memorandum recently - is that the issue was whether or not to circulate something, explaining the Administration position.

USS: OK.

JGR: And I didn't think Mr. Reynold's view was: You shouldn't do that because you didn't support the position. It was a question whether or not to circulate something at that time. And my view was whether or not I thought if the Administration was advocating its position it ought to get the position out.

USS: Well, I think that's good. You're a good advocate and a strong believer in this. The reason in this memoranda that you circled - and I have it right here - make what parts of it available to the record - in this, in the last paragraph, you said, On the issue of the effects standard nationwide, on the strength of the record, will be constitutionally suspect but also contrary to the most fundamental tenets of the legislative process, which the laws of this country are based. Constitutionally suspect - effects test.

The reason I bring this up is to find out what you believed in then and what you believe today because you, having raised your memoranda that this is provision - the effects test is constitutionally suspect - is that still your position? Because if it is your position on an issue as important as the Voting Rights Act that resulted in the elections of hundreds and thousands of local leaders of color in all parts of the country, Representatives in the House of Representatives, and moved the whole democratic process forward, then I think the American people are entitled to know. So, specifically, do you believe that the effects test in the Voting Rights Act, which is currently the law, is constitutional?

JGR: Well, Senator, I don't know what the analysis - you read a clause of a sentence - and I would have to look at the whole memorandum to see exactly what the suggestion or the issue was in the case.

CHAIRMAN SPECTER: Senator [Name], would you make the memo available to him, please?

USS: Sure. Yes. What I'm interested in doing is asking now whether you believe that the effects test is constitutionally suspect. I'm interested in today, quite frankly, more than what we had written before - whether you believe that it is suspect today or whether you find that it is settled law. It's fine if you want to, obviously, refer to it, but I'm interested in what's your view today, whether you . . .

JGR: Well, we're referring to - what I'm referring to in this paragraph is the Court's determination, if I'm looking at this correctly, under Section 5, its determination. The language you read notes the Supreme Court's conclusion under Section 5, which is the pre-clearance provision that applies to jurisdictions with a history of discrimination. And what the Court had said in that case was that requirement of pre-clearance was acceptable given the record that the Congress had established in the Voting Rights Act of 1965 of the practices in those jurisdictions. And the concern was that if you extend the effects test nationwide the record, which had been established only with respect to particular jurisdictions in the South, wouldn't apply nationwide, and that would be the basis for a constitutional challenge.

The application of the test under Section 2, which is - as you know, we use the shorthand, effects test - it's actually the totality-of-the-circumstances test, and it lays forth a number of considerations. And I think there is some argument about how closely it tracks the effects test under Section 5 or if it's a different totality-of-the-circumstances approach.

I'm not aware of any case that has questioned the constitutionality of the application of the totality-of-the-circumstances case under Section 2. And if an issue on that were to be presented to me on the Supreme Court, which it may be, given the pending extension of the Voting Rights Act, I would, of course, confront that issue as a judge and not as a staff attorney for an administration with a position. And as a judge I would come to the issue with an open mind and I would fully and fairly consider any arguments that might be presented. I don't know if an argument is going to be presented about the application of the totality-of-the-circumstances test nationwide. Again, I'm not aware of any challenges that have been presented to it since it was enacted. I don't know if any will be if or when the Voting Rights Act is extended again, but if it is I would confront that as a judge and not as a staff attorney for an administration with a particular position on that issue.

USS: Well, Judge, there hasn't been, at least that I know, in the legal circles, suspicion about the unconstitutionality of the effects test as it applies to Section 5. That's as grounded as it can be. I'm asking the specific issue that was the - really issue attention with the extension and really the most important part historically about the Voting Rights Act, whether you think that that provision is constitutionally suspect today. That is the backbone of effective voting in our country and our society. And I think the American people are entitled to know whether you believe or suspect that that particular provision which, as passed just overwhelmingly by the House and the Senate, signed by President Reagan and has resulted in this extraordinary march to progress, is constitutionally sound?

JGR: I have no basis. I'm not aware of any constitutional challenge that has been brought to Section 2 since it was enacted. And I have no basis for viewing it as constitutionally suspect and I don't. If an issue were to arise before the Supreme Court or before the Court of Appeals, if I head back there, I would consider that issue with an open mind in light of the arguments. I have got no basis for viewing it as constitutionally suspect today, and I'm not aware that it's been challenged in that respect since it was enacted. It may have been, but as I said, I'm not aware of it.

USS: I gather - you've had an extensive answer - that from that answer I did hear it is not constitutionally suspect as far as your view today?

JGR: Yes.

USS: OK. Could I move on the issue of affirmative action, please?

JGR: Certainly.

USS: In the Grutter v Bollinger case, the Supreme Court decided, very close, 5 - 4 decision, Sandra Day O'Connor, the deciding individual Justice, the Supreme Court upheld the university practices that considered race as one factor in its admission decisions. No one is talking today about quotas. We're talking about affirmative action as defined in this Grutter decision. The Court found that there was a constitutional affirmative action program aimed at achieving a racially diverse student body. In this decision the Court expressly gave great weight to the representation by military leaders - military leaders - that said a highly qualified, racially diverse officer corps is essential to the military's ability to fulfill its principal mission and to provide national security. What weight would you give to that kind of a comment or statement or testimony by the military in considering any issue dealing with affirmative action?

JGR: Well, the weight it was given was to help satisfy the test, as the Court, as you know, in Grutter, applied strict scrutiny because it was dealing with considerations on the basis of race. And that required the showing of a compelling governmental interest to support that legislative action. And the testimony of the military officers, as the Court explained, helped substantiate the compelling nature of the interest in having a diverse student body. And that was the weight that the Court gave it.

There was, of course, the other case. There were two Michigan cases: the Law School case and the University case, the Gratz where the Court did say that it looked too much like a quota in that case because it was given determinative consideration as opposed to being one of a variety of factors that is considered. And the two cases together kind of show where the Court is coming out, at least in the area of higher education. The Court permits considerations of race or ethnic background so long as it's not sort of a make-or-break test.

USS: Do you agree with Justice O'Connor, writing for the majority that gave great weight to the real-world impact of affirmative policies in universities? And the reason - I've got 35 seconds left - you might say: Well, this may eventually come on up before the Court. But the fact is we know how every other Justice has voted because they have all voted. And the American people would like to know where you stand on this very important public policy issue, particularly since Sandra Day O'Connor wrote such a compelling decision that was, I think, in the cause of fairness and justice.

JGR: Well, Senator, I think I can answer the specific question you've asked because, as you phrased the question: Do you agree with her that it's important to look at the real-world significance and impact? And 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.

Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.

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