Topic: Clarifying Prior Issues
Date: SEPTEMBER 13, 2005
SESSIONS: I also would recall, Judge Roberts, that in my opening statement I suggested that the pattern around here is to take out old statements and memorandum and bring them up out of context, and particularly the outside groups and sometimes senators would get confused, or sometimes these groups, I think, deliberately have attempted to paint a picture of you or the positions you took that are not fair or accurate.
I would just want to go over a few cases and deal with some of the issues that you have already been questioned with to make sure that we're square about it.
SESSIONS: On the Gwinnett case, the Title IX, the women's education case, the position you took that would deny the right to sue a state entity, a government entity for money damages, wasn't that a position consistent with the position of the Court of Appeals that had written the only opinion on that subject?
SESSIONS: So the Supreme...
ROBERTS: That was the Court of Appeals' position.
SESSIONS: So you, in advocating on that position, were expressing a view that was the view of the highest federal court in the land at that time?
SESSIONS: With the question to the Grove City case, it was good that Senator Grassley -- I'm from Iowa, I knew about that. And I think he clarified that question well here.
With regard to Bolden v. City of Mobile, you and Senator Kennedy had an exchange.
Well, I'm from Mobile. I was not involved in the litigation but know something about that litigation.
And when the exchange ended, as I recall, Senator Kennedy was insisting that the Zimmer case was the established law and that a number of cases had said that effects test applied, whereas you are contending that at the time you took the position you did, that the Supreme Court had ruled that an intent standard was required and that Bolden set the decision on that.
SESSIONS: And I guess the question for us today, who was right? You or Senator Kennedy?
ROBERTS: Well, I...
SESSIONS: I didn't want to ask you, but go ahead.
ROBERTS: No, I don't know if...
SESSIONS: I see the senator has returned.
ROBERTS: It was a renewal of a debate that was had between the administration and Senator Kennedy 20-plus years ago. And certainly, the issue of whether the Supreme Court had interpreted Section 2 and what it had said and whether or not it was correct was mooted.
Senator Kennedy's position eventually prevailed as a matter of legislation. Through the good offices of Senator Dole and others, the compromise was worked out and the totality of the circumstances test enacted under Section 2.
SESSIONS: Now -- but the truth is, is it not, that Bolden v. City of Mobile had been decided by the Supreme Court, and Bolden v. City of Mobile said that you had to show, when you consider a form of a local government, that before you could throw it out, create a new government for that city, you had to show that it was designed in a way to intentionally deny equal rights to the minority citizens?
ROBERTS: That was my understanding, and certainly the administration's understanding of Mobile and its interpretation of Section 2.
And as I said, the debate was largely mooted by the legislative change that was enacted.
SESSIONS: No, I'm just trying to get this thing straight because I don't want anybody to be misinterpreted.
Bolden v. City of Mobile quoted Zimmer. It was the final word on the matter. And it ruled that before the federal government could throw out a government of a city and require a new government to be established, there had to be an intent to discriminate. And that was consistent with the Voting Rights Act.
SESSIONS: And then when the Voting Rights Act came up for reauthorization, the legislature, the Congress, passed a law and changed the law that, in effect, said the effects test -- if it had the effect of discriminating or keeping African American citizens from being elected to office, that that could justify the removal of the existing form of government and establishing a new government.
ROBERTS: Well, that's right.
And it's in many areas -- well, certainly every area involving an interpretation of the statute, the final say is not with the Supreme Court, the final say on a statute is with Congress. And if they don't like the Supreme Court's interpretation of it, they can change it. And that's what happened in this case.
SESSIONS: Well, the Voting Rights Act, let me say, is a tremendously critical historical event. It transformed the South.
I think Senator Kennedy or others said that grandchildren and children today are being able to vote because of this right, and that's true. Not only are they being able to vote, they are being able to be judges who supervise elections, sheriffs, mayors, city councilmen, county commissioners.
Alabama has more elected African-American officeholders than any other state in America, and we're proud of that.
But this was a powerful act, and it did change the make-up of county commissions, city commissions, statewide boards all over Alabama, all over America, and it was a big step.
But the Congress made that, and you were correct when you said that your position was consistent with what the Supreme Court ruled at that time.
With regard to the question of comparable worth, I think Senator Feinstein was clear about this, but I'd like to make it a little bit clearer.
You have consistently favored equal pay for equal work, have you not, and did not President Reagan also favor that explicitly and openly?
SESSIONS: It's the question of this comparable worth theory that apparently one district court found in favor of, but that every circuit court and every other court that considered it rejected it, that said that some body, some commission, I guess, would decide whether a secretary should be paid as much as a truck driver and make those kind of value-judgment decisions.
Isn't that the difference between (inaudible) two aspects?
ROBERTS: That's right.
Yes, there is no question of equal pay for equal work.
It's the idea that someone should decide that different jobs are of comparable worth and that therefore they should be paid the same. And the district court adopted that approach. It was reversed by the 9th Circuit Court of Appeals in an opinion by then-Judge Anthony Kennedy.
SESSIONS: Well, that's right.
I know he did write on that, and I think that the 6th, 7th, 10th and 9th Circuits all rejected that idea and, frankly, hadn't been heard from since.
I'm glad that you and President Reagan didn't agree to that at the time. We would have commissions of incredible complexity trying to decide very important matters.
The National Academy of Sciences, in fact, found that and declared it did not believe that the value or worth of jobs could be determined by fair and scientific methods.
So I think that's important.