Topic: Discrimination
Senator: Kennedy
Date: SEPTEMBER 15, 2005
Contents
SPECTER: Senator Kennedy, for 20 minutes?
KENNEDY: Thank you very much, Mr. Chairman.
Good morning, Judge Roberts.
ROBERTS: Good morning, Senator.
KENNEDY: In response to a question that was asked by Senator Biden the other day, you appropriately pointed out that there were different responsibilities at the local level, state level and national level in dealing with the challenges our country faces in domestic policy.
I want to talk about what you understand are the powers that we have at the national level. And I want to start off on the issue of racial discrimination, discrimination on the basis of race in our society.
We've talked about this in different ways over the past few days. And our founding fathers did not get it right in the Constitution. We've had the Civil War, the struggles of Dr. King.
Do you believe that we have the authority and the power to pass legislation to free ourselves from the stains of racial discrimination?
ROBERTS: Yes.
KENNEDY: Now let me ask you about gender discrimination.
KENNEDY: You find out over the history of this country, as you're very familiar, how women have been discriminated against in all forms, in all shapes.
And now I want to ask you whether you believe that we have the power and the authority to pass legislation to free our nation from discrimination against women in our society.
ROBERTS: Yes, Senator, I do.
I'm familiar with the various legislative enactments in the area that protect right to work and so forth, free from discrimination and...
KENNEDY: Now, let me ask you about those that are faced with disabilities.
Do you think the 50 million Americans that are faced with disabilities in one form or another -- challenges, I like to say -- do you think that we have the authority and the power to free this country, free our nation from the forms of discrimination against those who have a disability?
ROBERTS: I do, Senator.
Now, there are issues that come up, as you know, in several of the cases before the Supreme Court on the particular applications of that, cases concerning the question of do you have the authority under Section 5 or the Fourteenth Amendment to abrogate state sovereign immunity if the claim of disability discrimination concerns a state as a defendant.
And as you know, in the Garrett case, there was conclusion that the authority was not there. Later, in the Lane case, under Title II of the Americans with Disabilities Act, the conclusion was that sufficient record had been established that there was the authority.
So while, as a general matter, there is the authority, in a particular case it may come up against other provisions in the Constitution, in that case the recognition of state sovereign immunity, and that presents an issue that the courts have to address.
KENNEDY: You mentioned the Lane case. That was decided 5-4. We're going to hear later today from Beverly Jones, who was a plaintiff in that case.
I've listened to her, I've met with her before. An extraordinary woman, mother of two, trying to provide for her family, court reporter. And it was either an issue or question whether she was going to crawl up the flight of stairs to have access to the courtroom and have someone bring up her wheelchair or whether she was effectively going to be denied that opportunity to have access to a courtroom in Tennessee.
KENNEDY: Four justices indicated in their dissent that this kind of issue or question ought to be resolved by states effectively. Fifty states ought to be making that judgment.
I strongly believe that this country, in its march toward progress, in dealing with the disability -- with Americans with Disabilities Act, the Rehabilitation Act, the work that was done with IDEA over the long period of time -- that we have come to the point where we as a country want to invite all of those with forms of disability to be a part of the mainstream.
But that was a 5-4 decision. And I appreciate the fact that I gather from your, at least answer, I guess, in the Lane v. Tennessee that you're at least sympathetic to the judgment that Justice O'Connor made in indicating that accommodation for those with disabilities in that case was appropriate.
ROBERTS: Well, it's certainly the precedent of the court in that area and I have no quarrel with it.
The issue, of course, is whether or not Congress has the authority under Section 5 of the 14th Amendment to abrogate the states' sovereign immunity. It's not a policy judgment by the court about leaving things to the states or federal government but a legal determination of whether the state's sovereign immunity's been abrogated.
And the court determined in that case that Congress did have that authority and that it could authorize the suit against the state institution.
KENNEDY: Well, we're going to come back to, sort of, the, kind of, legalist determinations that make and extraordinary difference in terms of people's lives. We welcome guidance and invitation about which particular provisions of the Constitution that we ought to utilize in order to strike down these forms of discrimination.
KENNEDY: Let me ask you a broader question: Do you think having a diverse society where everyone has an equal chance to participate is an American value and is fundamental to the strength of our society?
ROBERTS: I do. I agree with that statement, Senator. Yes.
KENNEDY: I do too.
And I want to just review very quickly what I consider to be a sort of a pattern in different judgments that you have made over a period of 20 years. We haven't got a lot of time, and I'm not going to bother going through the memorandas, unless you would like to.
But for someone who is black or brown or a woman or disabled and looked at a pattern over 20 years where you were actively involved in the Reagan administration against affirmative action -- I'm leaving out the whole issue of quotas. All of us oppose quotas. We are talking about affirmative action and you expressed strong reservations about affirmative action.
In 1991 in the FCC case, you as the advocate for the U.S., the acting solicitor general, refused to take the position of the FCC, your own client. And the FCC filed briefs in favor of its own affirmative action program and your office opposed the FCC.
This is, as I understand, extremely unusual.
Part of the difficulty that we have, Judge Roberts, is we don't have your records on affirmative action. They were in the Reagan Library. And at some time they became misplaced. And we don't have those records, to be able to give a complete review of these documents, although what I'm stating here is factual.
And we don't have the information that we requested from the Solicitor General's Office, who, as you appropriately mentioned yesterday, was America's lawyers in this particular case, in this solicitor case, where the FCC with its affirmative action program that recognized that with all of the broadcasting and the television station that there were no minority-owned stations.
And they had a modest program. They petitioned you, who regularly was going to intervene on behalf of the FCC, and then you made a judgment that you would not -- that you'd enter a brief in opposition to it.
The Supreme Court came out in favor of the FCC.
KENNEDY: I know that the standard altered and changed subsequently on that case.
And then in 2001, you took a private case to basically see that the Department of Transportation's affirmative action program, that applied, in this case, to the highways, which has been overwhelmingly supported by the Congress year in and year out, would be effectively undermined.
The point I'm asking here is, given these series of actions over a period of time, what do you think in your record would give some sense of hope to women, to minorities, blacks and browns, to those that are disabled, that are not looking for a handout, but just looking for a chance in this diverse society to be able to have an equal opportunity?
ROBERTS: Well, Senator, I think there's a great deal in my background that you could look to in that respect.
For example, you could look to the cases in which I argued in favor of affirmative action. I've argued on both sides of that issue.
In the Rice v. Cayetano case, for example, before the Supreme Court, I argued in favor of affirmative action for native Hawaiians.
ROBERTS: I lost that case but I was arguing on the side of affirmative action.
There are other episodes in my background that people could look to. For example, I regularly participate in -- when I was at my law firm -- a program sponsored by the firm, a legal reasoning program for minority and disadvantaged students going on to law school, to help them prepare for the rigors of law school, so not simply that they would be chosen, selected and admitted into law school but be in a better position to be able to succeed once they got there.
With respect to the FCC case that you mentioned in the Metro Broadcasting case, I think a fuller understanding of the situation there is necessary.
The United States had already taken a position before the FCC opposed to the FCC program. And that put the Solicitor General's Office in the position where they had the position of the United States, which was opposed to it, and the FCC position which had prevailed before the District of Columbia Court of Appeals.
I authorized the FCC to defend its position in court. That was a discretionary decision; I didn't have to do that. But I thought the Supreme Court in a situation where the FCC, part of the United States, and the formal position of the United States before I had ever gotten involved in the case were at loggerheads, that the court should have both views and decide the case.
They did decide it in favor of the FCC, 5-4. And as you noted in the other case that I participated in, later the Supreme Court overturned that decision.
The long and short of it is as you look at my record on the question of affirmative action, yes, I was in an administration that was opposed to quotas. Opposition to quotas is not the same thing as opposition to affirmative action. That was something that President Reagan emphasized repeatedly.
I argued against quotas in the FCC case.
ROBERTS: I argued in favor of affirmative action in the Hawaiian case.
In terms of my own personal involvement, I've been active in programs that promote the interests of minorities and disadvantaged to participate fully in our society.
KENNEDY: Well, as you know, in the Hawaiian case, that was not an affirmative action case. You gave that response to Senator Durbin in the written answers when you were promoted to the circuit court. And in the case itself, it indicates that it was not an affirmative action.
All right. Let me go -- we'll agree to disagree.
I've just got a short time left.
On the EEOC, there's the quote that you have -- this is the Equal Opportunities Commission that was set up in 1964 a part of the 1964 act. And it was basically set up at the strong suggestion and recommendation of Everett Dirksen, who played a key role, in order to try and deal with the discrimination on women, on race, on ethnicity, national origin.
And so they set up a commission in order to be able to take the various complaints.
They didn't think they'd have many complaints. First year, they had 9,000 complaints and has been doing extraordinary work ever since.
You mentioned in your memoranda that we should -- you're familiar, I think, with these words. They've been written up in the journals and you can probably recognize them. "We should ignore the assertion that the EEOC is unAmerican, the truth of the matter notwithstanding."
Is there anything -- is there some reason that you would make a comment like that...
ROBERTS: Well, Senator, you do have to read the memo, I think, in its entirety to put it in context. That was not my language.
ROBERTS: That was the language -- the "unAmerican" reference was the language that was employed by an individual who had a case before the EEOC. He actually won his case before the EEOC but he didn't like the difficulty and the time involved.
He wrote to the president. He said two things: one, that his treatment at the hands of the EEOC was unAmerican; and, two, that the president had promised in the campaign to abolish the EEOC, and he wanted to hold the president to that promise.
It was my responsibility to figure out how to respond to this complaint that had been received. And how we responded was by protecting the EEOC from interference by the president in any political way, by protecting the EEOC from this sort of complaint.
We did not go to the president and say, "You've got to do something about the EEOC." We didn't pass on the objection at all.
And the point of the letter -- when you read the whole memorandum, you see two points.
The first is that I was unable to determine, in the short time I had to respond, whether or not the president had made such a pledge to abolish the EEOC. I simply didn't know. And I said that in the paragraph, if you read it. And that's what "the truth of the matter notwithstanding" is referring to: the question of whether or not the president had promised to abolish the EEOC.
I say right in the memo that we cannot determine that. And whether his treatment was unAmerican or not is beside the point; we don't interfere with the activities of the EEOC. That was the conclusion and that's what we did in that case.
KENNEDY: Well, Mr. Chairman, I'd ask that the memo be included in there.
SPECTER: Without objection, it will be included.
KENNEDY: You say that "The assertion of the EEOC is unAmerican, the truth of the matter notwithstanding."
ROBERTS: You do need to read the prior clause.
KENNEDY: I'll include, but I want to come -- because I'm in the final few minutes, and I will. I've read it a number of times and I'll include it in the record and let the record...
SPECTER: When Senator Kennedy's line of questioning is finished and he's used his time, you'll have the memo and you can respond.
ROBERTS: Thank you.
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