Summary

JUDGE JOHN ROBERTS HEARING The Senate Judiciary Committee continues its 4th day of hearings on the nomination of Judge John Roberts to be Chief Justice of the Supreme Court. Roberts / Outside witnesses Senate Judiciary continues with Roberts hearing--- begins with twenty minutes from Senator Patrick Leahy, then Senator Ted Kennedy, Senator Dianne Feinstein, Senator Russell Feingold, Senator Charles Schumer, Senator Richard Durbin, then a closed session from 11a-11:30am. Roberts is excused and the hearing reconvenes at 11:30am for 6 panels of outside witnesses. (1p-2p break scheduled) 13:00:01.5 a.nabret. judge robertson. j higenbachman and others that have mine and i trust your deep and enduring respect and these 13:00:14.2 individuals believed in the constitution and hoped government would step up and protect the rights of the the minorities and the persons who were victims of majortarian successes and fashioned a 13:00:31.6 strategy for using the laws and kowrlts to attack racial seggration and set the court to remain the stain of racial seggration the law and court i am posed upon the land. you may ask why i invoke the 13:00:47.5 names and speak in the voice of towering legal giants and hold up the contribution to advice civil rights juris prud ens. two fold: first i'm qualified to do so. second: since nominated bit 13:01:03.2 president serious questions have been raised concern judge roberts' views about the relevance and legality of 13:01:11.5 remedies aimed at ending race yat discrimination unfortunately few americans know or focus on the history of myriad ways the positive law and legislatures and courts reinforced and perpetuated 13:01:25.8 racial discrimination in america. it is up to this committee, therefore, to assure the very least the next chief justice of the united states understands that history and most importantly why remedial action was and continues to be necessary. 13:01:40.4 those kowr ageious soles that laid the foundation or overturning decades of legally enforcedrationial seggration are calling out to you and i echo their voices to respect their labors and heed their lessons. once fitness to be the chief 13:01:55.3 justice transsends stellar economic, am democratic achievements and acknowledge professional competence. the nominee's views and documented activist attempts to thwart the court's attempts to mismantle seggration schemes 13:02:11.6 and courts permitted to be ejected and sustained bring into play something much more fundamental than technical skills. critical question before you is one of values. not exe tension. -- competence. to understand why it is true let me only consider the most 13:02:29.0 wretched decision the supreme court ever handed down in a case of human rights, dread scott v. sanford. the authorize of that decision judge jghts roger tawney highly qualified -- but faced if a 13:02:47.1 former slave had to sue to attain the free status as tawney wrote black persons are not persons within the meaning of the framing of the constitution. brown, author of 1986 plexy v. ferguson had impressive 13:03:03.8 credentials and academics and a graduate of harvard and yale and prior judicial experience sixth circuit court of appeals and lacked the values to sense advertise why 13th, 14th 15th amendments in other 13:03:24.8 words a loan dissender, graduate of a smaller law school son of slave owners who gave us the final word, and his word, his word that -- has rung throughout years. gentlemen and lady, i would 13:03:42.6 conclude with this observation abraham lincoln stated in his famous speech 1862 to the congress fellow citizens we cannot escape history. 13:03:55.9 and it was george santiana said those cannot remember the past are condemned to repeat it. given the nature of the exchangesings i've observed taking place this week in 13:04:11.0 connection with the hearings i would leave with you the words of dr. martin luther king: he asked, and answered, these questions: coward es asks the question, is it safe, expediencesy asks the question 13:04:29.3 is it politic? then the question, is it popular? but conscience must ask the question, is it right? i leave you with those challenges. >> mr. specter: thank you very much, judge jones. our practice in the committee is to have a five minute rounds 13:04:48.5 in the setting the witness list, we had many, many, many requests. and we have honored as many as we could with some 30 witnesses equally divided between 13:05:02.4 democrats and republicans, usually there is he a tilt for the majority, but my decision was to divide them equally. we have a very long road ahead of us. this is the second panel on 13:05:18.1 six. and it is my hope that the request he will be brevard ed and wanted to -- abriefitiated and wanted to see you and hear you and hear your statements 13:05:32.9 and view and look you in the eye. i'll have just a few questions you want to ask. let me start ug congressman lewis for you with great appreciation with what you have done. 13:05:46.6 the voting rights act which we labored through in 1982 and i was there and senator dole's office and senator kennedy deeply involved and senator leahy and so many of us were, to get the effects test instead 13:06:05.5 of intent test so we'd have 13:06:09.1 realistic enforcement of civil rights. senator kennedy and i conferred and he came to me and said let's renew the bill this year, act this year, if we can. 40th year anniversary and have a jammed agenda and try to do that, will be renewed. 13:06:22.8 doesn't expire until 'o7 and i'm very much with you on the objectives and what we have to do. the memoranda which were referred to and quite a number of them, go back to judge roberts' days as a young lawyer 13:06:39.4 and he has testified that he was representing a client and we had real battles with the regan administration. there's no doubt about that. and i was involved in them, notwithstanding the fact it was 13:06:53.8 my party. congressman lewis i would like your views how you regarded what judge roberts said in explaining his views at the time -- or what the memoranda said, which he said were not necessarily his views, and you 13:07:15.7 have to evaluate that contrasted with very close questions to senator kennedys and others and did not raise objections and said he did not have an agenda to turn back the clock 13:07:26.9 >> mr. lewis: my view, senator -- mr. chairman, that the judge was on the wrong side of history. he was on the wrong side of the voting rights act. not just the letter, but also the spirit of the act. it is very hard and very 13:07:46.1 difficult, almost impossible, to prove intent. you don't have, i think, vernon jordon, the former head of urban league said on one occasion, that you won't have people in the american south in 13:08:01.6 11 southern states old confederatesy from virginia to texas putting up signs saying we're going to discrimiate and keep black people from getting elected. they're not going to do that. i was young, too. a few years ago. 13:08:18.4 24, 25. but i tried to dot right thing. -- tried to do the right thing and i got in the way. judge roberts as a young attorney in the administration of president reagan and others failed to go with his gut. 13:08:35.0 maybe, did he go with his gut? did he go with his heart? or just views. you don't come by years later and say, oh, no, oh, no pfs not my view. -- this was not my view. sometimes you have to fight and 13:08:50.0 get in the way. if you can't get in the way at 25 or 30 you, you're not going to get in the way when you're 50. >> mr. specter: thank you congressman lewis. i have a 1:40 left and give governor thornburgh an opportunity to comment. based on your knowledge of 13:09:06.7 judge roberts and you worked with him, at a time when he was young, did you think that those memoranda reflected his own views as to civil rights? or what do your insights and 13:09:22.0 knowledge of judge roberts tell you as to what we might expect of him as chief justice if confirmed on these issues? >> mr. specter: mr. thornburgh let me. mr. thornburgh: i've never 13:09:41.5 seen hostility of civil rights with judge roberts on my professional association with him going back some 15 years. secondly i think it is important and justice ginsburg was quite definite in this in her appearance at the time of 13:09:58.9 her nomination, to separate out the views that are expressed as an advocate for a client and the views that might obtain if the individual were speaking for him or herself. and thirdly, i don't think any of us could stand, perhaps, my friend john lewis could, 13:10:17.9 because of his distwink wished career, i don't think any could stand a complete and thorough rum ishing through the views we expressed at 20 or 25-year-old d -- 25-years-old. 13:10:33.9 i shutter to think the thinks i had in my craw at at time would stand the test today. most importantly i think my conclusion on the basis of personal knowledge of judge roberts that there's no hostility there in the civil rights. 13:10:50.9 as avenration of the rule of law and to extent of rule of law permits, it seems to me, that he would be a strong supporter of equal rights and equal treatment and equal justice for all under the law. 13:11:06.5 >> mr. specter: thank you governor thornburgh. this is a very, very distinguished panel and we could hear a great deal more and my time sup and i have to set the lead on observing the time. senator leahy could you care to question? >> mr. leahy: a comment, 13:11:21.8 and, of course, governor thornburgh is a friend of all of ours and worked with him as an attorney general and mentioned justice ginsburg, so the record is clear, her appearance here is a lot different. 13:11:35.4 she answered questions from numerous senators and race discrimination and affirmative action. several other senators she answered questions on gender discrimination. several other senators she answered questions reproductive rights. 13:11:51.4 from several other senators answered questions on death penalty. and first amendment and freedom of speech, region clause of the first amendment, separation of powers, unnumb rated rights, 14th amendment. [ indiscernible ] difference to 13:12:07.2 congress and three or four thee didn't answer but answered specifically from both republicans and democrats intensive. i only mention it it seems to be some view when judge roberts took, i think, too much to 13:12:25.0 heart, the recommendation by a. i, when my friend john lewis talks about times get in the 13:12:41.6 way, he knows of which he speaks. he nearly died doing that. he's doing it for the right cause. the cause is civil rights. and i think every effort in america and every white 13:12:56.4 american and every browne brown american and everybody always, all americans, have to thank you for what you did. >> mr. specter: thank you senator leahy. anybody want to say anything? [ unidentified speaker ] 13:13:12.4 could i have a thought and welcome the panel, particularly a friend of john lewis and worked a lot on the african-american museum of history and culture here in washington d.c. sometime soon and got that passed through. judge roberts if i could ask you a real brief question 13:13:30.7 >> mr. brownback: i hear the concerns and thoughts and i respect the thought that you're putting forward here. judge roberts asked you know when people, i think, senator durbin asked him, how do we know what kind of judge you're 13:13:45.2 going to be on the issue, obviously you have a great head and want to look at heart and hard to see a man's heart and judge roberts respond and said, well look at how i ruled in the cases thus far, not a lot of, 52 cases thus far, has one washington metropolitan transit 13:14:01.8 authority, where he ruled against the d.c. government's claim of sovereign immunity in in favor of workers disability discrimination lawsuit. kind of thin, but we only have 52 cases and that one is there. and then, he also talked about 13:14:18.0 his dedication to rule of law. and that's really what drew him into the law and if he is sufficiently dedicated to that rule of law, given the basic, los now that we have on books, to work to protect civil rights 13:14:33.7 and number of other issues, shunned that give some solice if the heart is right on defending the rule of law given we gotten the laws better and right now, he could be quite a good judge for civil rights 13:14:51.5 cases? 'll respond as a former litigation and judge. as a judge we look at the 13:15:04.7 record and record made here, part i have observed shows an early >> mr. jones: disposition to take positions contrary to civil rights enforcement. the burden that is now imposed 13:15:20.8 upon him and imposed upon this committee is to be satisfied that the presumption for infeferns that one can draw 13:15:38.6 from the prior record is overcome and that he doesn't share those views at this time. that's a burden of judgment this committee has to make. i would also point out that if i may just be a little personal, at the time i left the -- my job as a general counsel naacp, a position that 13:15:57.7 i had occupied which authorize 13:16:04.9 -- thors go good marshall occupied, i joined the court upon boiment of president carter in 1979 and at that time we thought, generally, certain 13:16:15.2 civil rights principles were settled. we thought the issue of school deseggration was settled in light of chief justice berger's decision said that bussing and transportation appropriate 13:16:31.3 remedy when finding of constitutional violations that rigged a school district. we thought the issue of firm firm was settleled when the bockey case and justice powell opinion to take race into account. we find that following that case, those cases which i 13:16:47.9 thought were settled, i was in sitting as a judge on the sixth circuit court of appeals and engaged in dealing with the first wave of attacks against school deseggration and against affirmative action. the challenges claiming 13:17:04.9 preferencial treatment, claiming forced bussing. all of these buzz words were coming at the court and we were, then, faced with the decision, are these principles settled? and i, now, learn that in the boiler room of the regan 13:17:21.7 administration, stoking out and crafting a lot of theories that were being used in the courts to attack the fellow principles, was the nom me. now, that -- nom nominee. that raises the question for 13:17:36.8 you and the committee to desid, one, if one is a believer in the rule of law, why one would not accept swan as settled law, not accept bockey settled law and not accept weber and settled law and whole juris prud ens built up to reaffirm 13:17:55.2 the value of remedial actions when it was clear that we had this vast history of racial discrimination >> mr. brownback:fy could before my time runs out, quickly say i appreciate the thought 13:18:10.3 >> mr. specter: senator brownback we have to move on >> mr. brownback: would know what judge roberts has ruled and done as a judge. and i would hope people could look at that and in a fair light of what it is and indicating his judicial tempment and nature. that's, mr. chairman. 13:18:27.1 >> mr. specter: thank you very much, senator brownback. we're going to break for unlunch. senator kennedy? >> mr. kennedy: thank you very much. i don't think any of us in the course of time of questioning judge roberts ever suggested that in any way he had any hostility on the issues of 13:18:45.2 race. i really think the question was, does he get it. does he get it? just what the good judge pointed out, the march toward progress we've seen over the recent years. so i'd ask mr. henderson and john lewis. 13:19:02.4 how about this argument? well, he was just an attorney. he was just an attorney you speaking for administration. he was just taking administration's position. so we shouldn't be too harsh on this. sure, administration was just wanted the reauthorization of the intent test. 13:19:19.3 he was just following orders. so to speak on this. why should we not assume that he gets it? with regards to the issues of this nation's great, great 13:19:36.2 challenge, the poison of discrimination that is there since the first days of it. and we've all seen, including my own state of massachusetts. the challenges that we have faced. what's your response to that? >> : senator i reg recognize 13:19:58.7 a legitimate argument it represents the views of the client. >> mr. henderson: i assure you judge roberts never 13:20:10.8 distanced himself from issues in particular the memoranda at issue to give comfort to the notion he had not internalized these views to reflect his own policies. judge roberts has a vision of judicial restraint and he's articulated it himself, really 13:20:28.4 a retreat from the role of the fed cal courts in protecting civil rights. from my view this is not academic debate but very personal. i grew up right here in the nation's capital and 16 before form seggration ended by law. 13:20:44.3 i know what it is like to be on the politically disfavored side of a color line. and i know that the federal courts have played an importat role in helping to ensure equal opportunity for all of american 13:20:59.5 citizens and we're not prepared to take that risk. i would simply say even in today's society, senator brownback mentioned earlier, lots changed and things happened and improved. true. 13:21:13.3 in the words of william faulkner the past is never dead and in fact not even past. to confirm that point i have a pending complaint, right now, before the department of justice, for a case of public accommodation discrimination from a hotel in new orleans over the fourth of july weekend in an area where i thought 13:21:31.2 change had been made and a lasting way that would not have let that happen and i know first hand the stigma and reject the analysis. >> mr. kennedy: it's true i asked him about whether the 13:21:46.8 positions he had taken at that time whether he would reverse any of these and we didn't hear a response from him that he might. let me ask john lewis, to comment on that, and then, also, the comment. got a minute and a half, john, you note business and hope you 13:22:04.0 respond to the earlier question. hope, also, when judge roberts was asked about the intent test and effects test and was asked, also, by members of the panel well if we actually had the 13:22:20.4 intent test do you think we'd made the progress we'd made with the effects test? he said, i'm not so sure we might not have made the kind of progress on that. we know the earth shattering progress that's been made with the election of officials 13:22:35.9 locally state and at the federal level in the progress that's made with the effects test. i'm interested in someone who knows the and believes that the voting rights act is the key civil rights issue, what is 13:22:52.2 your own view on this question? how could anyone view that if we had had the intent test to be where we are today? wouldn't we be a different land? >> mr. lewis: i tell you, senator, as someone that worked in the america for several 13:23:09.1 years directing voter education project seven years trying to get people registered and trying to get people to to lose their sense of fear, i tell you we wouldn't be where we are 13:23:23.0 today. the american south would be different. the country would be different if we had relied on the intent test. i wouldn't be here as a member of congress and a lot of my colleagues in the house of representatives and a lot of elected officials all across the south, before the voting rights act in 1965 less than 50 13:23:40.9 black elected officials in 11 southern states virginia to texas. today there's more than 9,000. we wouldn't have made it. that's still would be people trying to get elected and they wouldn't be elected. i don't buy the argument just 13:23:55.1 doing his job. he was just following the rules s. by 2 time you had the '64 civil rights act; '65 voting rights acts is fair housing act in 1968. 13:24:10.6 by this time someone in the administration, they should have a mindset. i think that says something about juris roberts mindset and didn't stand up and argue against this attitude. he didn't speak out. he didn't send memos saying something different. ken my time is up, thank you 13:24:29.7 >> mr. specter: thank you very much, senator kennedy. senator durbin? >> mr. durbin: thank you very much mr. chairman and to the panel and that you my colleague senator kennedy i think during the course of inquiry of judge roberts lazar focused on civil rights and 13:24:46.1 voting rights act and done a great service to the operation of the committee and i hope that we all appreciate how much work went into it. but i do recall, senator kennedy, on the first day you went into this, i made notes, how judge roberts repeatedly said that's 23 years ago and a 13:25:02.8 staff lawyer and the justice department and that was the position for the administration i worked for and my job to articulate administration policy. we heard that consistently whenever we brought up the memos. so i thought to myself in fairness if we're going to allow him to use that 13:25:19.5 explanation, what does he feel today? what can he tell us today? i, personally, believe in redemption in faith and politics and i think john lewis you've seen so many in the past in the wrong side of history in the civil rights that realized 13:25:34.8 that and conceded that and moved to a different position. during the course of this hearing, we asked judge roberts many questions. in fairness to him one of the due direct questions he answered when i asked about bob jones university case and said 13:25:50.6 i disagreed with the position of regan administration. i'm glad he said that. i wish he could have told us more. then i tried him a last round 13:25:58.0 of questioning to get down to a point of where would you draw the line as an advocate? or some things you would not bring your legal skills to. you have spoken with pride of romer v. evans and the fact that you counseled gays and lesbiansto about to lose the 13:26:15.5 rights in colorado and a few hours ago asked him sitting at the same table, could you take the other position to restrict the rights? he said yes. so it comes down to fundamental question. i don't think i understand if there's a clear right brine in 13:26:29.9 the mind when it comes to the issue of freedom and when it comes to the issue of liberty and that troubles me, knowing that i'd feel more confident he could lead the court. i'd like to ask you, john lewis, on the issue of redemghts, do you feel that even if -- redempings, do you 13:26:47.9 feel even if he was totally wrong 23 or 24 years ago in the memos, people can change? >> mr. lewis: i think it is possibility and conceivable, senator, that people can change. but when you believe and feel and know from your experience 13:27:04.2 or maybe from the law, and from history that you've been wronged, you show some signs. you're not afraid to talk about. you're not afraid to go on the record. juris roberts has been afraid to show or demonstrate in his signs that he's changed. 13:27:21.6 i wonder what his part of mind dset >> mr. durbin: i think that's the point and wade henderson made the point when senator kennedy went directly to the voting rights act like bob jones university he could have made it clear that 13:27:36.0 position was just wrong and history had proven it wrong and yet for two successive days, it came up short. wade henderson you've made that point on what you had to say here, the critical questions, values and just not competence here. 13:27:51.1 what we're dealing with. judge roberts -- judge jones said the same. i don't want to dwell any longer other than to tell you this is the threshold issue, the issue of race is the threshold issue and i have to 13:28:07.0 be convinced in my mind judge roberts comes to the critical job as the head of the third branch of our government with the clear understanding what we must do in this country, still, to deal with the issues of race and justice for so many min or thees in this country. thank you -- minorities on the 13:28:24.6 panel. >> mr. specter: thank you very much, senator durbin. >> mr. brownback: mr. chairman if i could make one quick clarification. we're talking redemption and i don't think he needs to be redeemed in any sense whatsoever. 13:28:37.9 to the extefernlt -- no, new speaker. prior to the efects test. >> mr. kirsanow: let's look after the effects test implemented what did he do? argue the chisism v. roberts and argued for the extension of 13:28:55.6 effects test to state judicial eleks if he redeemed himself at all clearly did it right there. we have facts here. this is not speculative in terms of looking at heart and [ indiscernible ] necessarily 13:29:11.3 discern that we were absolute evidence what he felt about enforcement of effects test >> mr. specter: thank you commissioner. senator sessions wants a minute recognition before we break for a very abbreviated lunch >> mr. sessions: thank you mr. chairman. i would like to add, i've been 13:29:26.8 listening to some of this as i could. i would like to add that we prefer the explanations from judge roberts on each one of the memorandums he wrote, each one of the situations he was called to express an opinion on, such as the effects test. 13:29:42.8 his ruling was absolutely consistent with the supreme court ruling, at that time. all i would say:i think it is -- say is, i think it is unfair to suggest he has a record that indicates that he 13:29:58.5 was somehow wrong on civil rights at that time. yes, he opposed quotas, yes, he supported the extension of the voting rights act, completely. but, he did not favor itsality races to overrule the supreme court -- -- supreme court 13:30:18.6 opinion. i would like to say the record shows affirmatively he's committed to equal justice under law what he's called upon >> mr. specter: thank you very much, senator sessions 13:30:29.0 senator kennedy? >> mr. kennedy: consent that the naacp legal defense education fund prepared some important testimony to be made a part of the record >> mr. specter: without objection made part of the record. thank you all very much. we have so many witnesses we're going to have enabbreviated 13:30:47.1 lunch hour and resume at 2:00. [ recess ] 1:30 p.m. east everyone time. 13:30:57.9 --1:30 p.m. eastern time. [ recess ]