Topic: Affirmative Action
Senator: Kennedy
Date: SEPTEMBER 14, 2005
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Could I move on to the issue of affirmative action, please?
ROBERTS: Certainly.
KENNEDY: 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.
KENNEDY: 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?
ROBERTS: 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 Grats (ph) case 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 consideration of race or ethnic background, so long as it's not sort of a make-or-break test.
KENNEDY: Do you agree then with Justice O'Connor, writing for the majority that gave great weight to the real-world impact of affirmative policies in universities?
KENNEDY: 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.
ROBERTS: Well, Senator, I think I can answer the specific questions 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.
KENNEDY: Thank you very much. My time is up. Thank you.
SPECTER: Thank you, Senator Kennedy.
We will now take a 15-minute break. We will reconvene at 11:25.
(RECESS)
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