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Sen. Mark Dayton: why I oppose John Roberts as Chief Justice

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MnFats Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Sep-28-05 10:56 AM
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Sen. Mark Dayton: why I oppose John Roberts as Chief Justice
fresh from the mojo wire:





I rise today to oppose the nomination of Judge John G. Roberts, Jr., to be the next Chief Justice of the United States.
The available record of Judge Roberts writings during his public career in President Reagans and the first President Bushs Administrations, and his very brief 2 ? years as a judge on the D.C. Circuit Court of Appeals reveal his persistent opposition to laws enforcing desegregation, protecting minority voting rights, guaranteeing quality public education to students with disabilities, and providing damages to a student who had been sexually abused by a teacher.
Regrettably, Judge Roberts declined repeated invitations by Senators during the recent Judiciary Committee hearings to recant or modify some of his most extreme and disturbing statements and positions.
For example, in a memo to White House Counsel, Fred Fielding, Judge Roberts referred to Mexican immigrants as 'illegal amigos.' Before the Judiciary Committee, he claimed, It was a play on the standard practice of many politicians, including President Reagan, when he was talking to a Hispanic audience he would throw in some language in Spanish.
Pressed again, he replied, The tone was, I think, generally appropriate for a memo from me to Mr. Fielding.
I strongly disagree.
During the Reagan Administration, Judge Roberts was one of the leading lawyers in the Justice Department fighting against any improvements to the Voting Rights Act, according to William L. Taylor, in the New York Review of Books (Mr. President, I ask UC that the New York Review of Books article be included in the Record following my remarks).
He reportedly drafted a letter sent to Senator Strom Thurmond, urging him to oppose the bill extending the Voting Rights Act, which the House had passed by a vote of 389 to 24.
Despite Judge Roberts opposition, and the opposition of President Reagan, the Senate passed the bill 85 to 8, with Senator Thurmond voting in the majority. President Reagan signed it into law 10 days later.
In the Judiciary hearings, Judge Roberts claimed his respect for precedent, but he clearly showed no respect for the 1965 Voting Rights Act, which he opposed 16 years later.
In 1982, Judge Roberts also opposed the claim of a deaf student that she should have the classroom services of a sign-language interpreter under the Federal Education for All Handicapped Children Act.
He went so far as to write the Attorney General, disagreeing with Reagans Solicitor Generals support for the student, when her case went before the Supreme Court.
In Judge Roberts letter to the Attorney General, he reportedly referred to Supreme Court Justices William Brennan and Thurgood Marshall as the activist duo, who used the Solicitor Generals brief to support an activist role for the Courts.
That he would write the Attorney General, criticizing the Solicitor General, does not support his contention that he was merely a staff attorney reflecting the views of his superiors.
Judge Roberts did not fare so well before Chief Justice Rehnquist, when, as Deputy Solicitor General under the first President Bush, he argued that another student, a 10th-grade girl, had no right to damages after being sexually harassed by a teacher.
This time, the Supreme Court, which included Justices Antonin Scalia and Clarence Thomas, unanimously rejected Judge Roberts position and ruled in the girls favor.
Given these and other indications of Judge Roberts legal views and judicial philosophy, it is especially troubling that he and President Bush refused Senators requests for the public documents he wrote while he was the Deputy Solicitor General. And, given his unwillingness before the Senate Judiciary Committee to disavow any of his known earlier writings, I can only assume that the later, hidden documents contained views as bad or worse.
What Judge Roberts' available writings do show is a man born into wealth and privilege, and thereby given all the advantages to assure his success in life, who consistently opposed even lesser opportunities for Americans born into less fortunate circumstances.
He called school desegregation, a failed experiment. He claimed that federal law entitled the deaf student only to a free, appropriate education, and denounced the effort by activist, lower court judges, to give her more.
He opposed compensatory damages for the girl sexually harassed by her teacher, even though the federal government was not a party in the case, writing that it had an investment in assuring that private remedies do not interfere withprograms funded .
My principal concerns are not about Judge Roberts mind but about his heart.
Of even greater concern, because it was so recent, was Judge Roberts failure to recuse himself from a case before the D.C. Court of Appeals, which involved President Bush as a defendant, while he was being considered for nomination to the Supreme Court.
Reportedly, Judge Roberts first interview with the U.S. Attorney General regarding his possible nomination to the Supreme Court occurred last April 1st, before the case was argued before the Appeals Court panel, on which Judge Roberts was one of three judges. On May 3rd, Judge Roberts met with Vice President Dick Cheney, White House Chief of Staff Andrew Card, Attorney General Gonzales, and Senior Advisor Karl Rove. On May 23rd, White House Counsel Harriet Miers interviewed Judge Roberts again.
On July 15th, Judge Roberts and another judge on the Appeals Court panel ruled entirely in Bushs favor and against the plaintiff. Four days later, the President nominated him to the Supreme Court. The plaintiff and his attorney were reportedly unaware of the Judges job interviews with the defendants (the Presidents) legal counsel and closest associates until his August response to a Senate questionnaire.
Holding those interviews, not disclosing them to the plaintiffs counsel, and not recusing himself from the case after the interviews began, all violated federal law on the disqualifications of judges, according to a Slate Magazine article, which continued, Federal law deems public trust in the courts so critical that it requires judges to step aside if their impartiality might reasonably be questioned, even if the judge is completely impartial as a matter of fact. As Justice John Paul Stevens wrote in a 1988 Supreme Court opinion, The very purpose of is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible. (Mr. President, I ask that the Slate Magazine article entitled, Improper Advances: Talking Dream Jobs with the Judge Out of Court, be inserted in the Record following the conclusion of my remarks.)
It seems clear to this Senator that the only way to avoid the appearance of impropriety of deciding a case directly involving the President of the United States while being considered by him for nomination to the Supreme Court was for Judge Roberts to remove himself from the Appeals Court panel. At a minimum, he should have disclosed those interviews to the plaintiff and his attorney.
When asked about this case during the Judiciary Committees hearings, Judge Roberts declined to acknowledge any regret for his actions, even with the benefit of hindsight. I find his lack of self-awareness to be shocking. Can any impartial observer not wonder whether Judge Roberts would have been nominated by the President to the Supreme Court, if he had ruled against the President four days earlier?
Obviously, the instances I have cited do not comprise the complete public record of Judge Roberts. Regrettably, as I said earlier, we will not have the complete record, because important documents from his tenure as Deputy Solicitor General in the first President Bush Administration are being withheld from us. These and other similar incidents do, however, raise sufficient doubts and concerns that I cannot vote to confirm Judge Roberts as the next Chief Justice of the United States. My doubts and concerns are magnified by the enormity of his influence over the Court and the country during, given his age and life expectancy, the next 30 to 40 years.
I disagree with my colleagues and fellow citizens who view the current Supreme Court as some liberal bastion. In fact 7 of the 9 Justices were nominated by Republican Presidents. During the past decade, the Rehnquist Court rejected Congressional actions on Affirmative Action, Violence Against Women, Americans with Disabilities, Age Discrimination in Employment, and enforcement of Environmental Laws. Many crucial and controversial cases were decided by closely divided 5 to 4 votes.
I view the current Supreme Court as closely balanced between this countrys conservative center and far-right extreme. I fear that this nominee and the Presidents next nominee will shift the Court drastically and destructively toward that far-right extreme. That may form the Presidents political base, but it does not constitute the countrys citizen base.
The Supreme Court belongs to all Americans not just to a politically favored minority. Its Justices should be exactly what the right-wing activists dont want men and women of moderate, independent views, who will decide cases from mainstream judicial and social perspectives, rather than extreme ideological prisms.
How much do the Justices opinions matter to the lives of all Americans? Enormously. More than we realize, and much more than we take for granted.
I ask UC that an article from Harpers Magazine by University of Chicago Law School Professor Cass R. Sunstein be included in the Record following my remarks. He pointed out that in 1920, minimum wage and maximum-hour laws were unconstitutional. In 1945, he wrote, the Supreme Court permitted racial segregation, did not protect the right to vote, and gave little protection to political dissent.
Fortunately, subsequent Supreme Courts reversed those decisions. Unfortunately, subsequent Supreme Courts can reverse them again.
Millions and millions of Americans depend upon the rights and protections secured by those and other longstanding laws, and they assume that those rights and protections are guaranteed; not provisional, and not contingent upon who is sitting on the Supreme Court.
Those millions of Americans, most of whom do not share the extreme views of the Republican Partys radical right wing, deserve to continue their lives with the rights and protections established by previous Supreme Courts. Those citizens, and this Senate, are entitled to
Know whether a Chief Justice Roberts and a Roberts Supreme Court would respect and uphold those long-established precedents and principles, or reject them.
Instead, we are being asked to wonder and wait. That is too risky a gamble with the future of America.
And why I will vote against Judge Roberts nomination.
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Laura PourMeADrink Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Sep-28-05 11:18 AM
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1. bravo!!!
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firefox Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Sep-28-05 11:37 AM
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2. Speaking up might be more important than voting no
He makes a coherent objection right from the start. He had me at two years on the bench. The secrecy reminds me of a much needed impeachment. The fight against fascism has a big battle here that has to be fought even if the dark-power entrenchment is going to prevail.

Thanks for speaking up Senator and thanks for voting no against the fascist move.
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