Topic: Plyler Memo - Child Education
Senator: Feinstein
Date: SEPTEMBER 15, 2005
Contents
SPECTER: Senator Feinstein for 15 minutes.
FEINSTEIN: Thank you very much, Mr. Chairman.
I want to just say one thing. I don't really know what I'm going to do with respect to voting for you or voting against you.
FEINSTEIN: I had one impression of you when we had our hour in private. And to a great extent, I think I came out of that meeting with a different sense of you.
And, of course, the impression that I have today is of this very cautious, very precise man, young, obviously with staying power. I mean, you've gone through this in a remarkable way. I'm convinced you will be there, God willing, for 40 years.
And that even concerns me more because it means that my vote means more. And I come from a different side than the Republicans do with different concerns, I think; different life experiences.
Last night, we gave you the Plyler memo, Senator Durbin asked a number of questions, I asked a few. And you read that memo, I hope, last night.
ROBERTS: I did, Senator, yes.
FEINSTEIN: Do you believe you were wrong?
ROBERTS: Senator, on the underlying question...
FEINSTEIN: Could you say you were wrong if you believed you were wrong?
ROBERTS: Well, I can say that -- the reason I'm hesitating -- and this is what was brought out in the Congressional Research Service memo that you attached to it -- these issues come up all the time in related questions.
I have no quarrel with the court's decision. As you know, it was a 5-4 decision on the legal question, not the question. I certainly believe every child should be educated.
FEINSTEIN: Regardless of immigration status?
ROBERTS: My own view is that if you have a child, he or she should be educated. We'll worry about status later.
FEINSTEIN: Just say yes, regardless of immigration status.
ROBERTS: As a personal view, yes. It's a separate issue as a legal question, as you know.
And the court in Plyler split 5-4. Among the dissenters, the people who agreed with the position that the administration -- or the position discussed in the memorandum, were Justices White and Justice O'Connor.
And I would not take their subscribing to the position of the dissent in Plyler v. Doe as suggesting that they in any way have less than fully developed and sensitive concerns about children and education. Justices White and O'Connor don't and they're not subject to criticism on that score simply because their understanding of the law came out in the dissent in Plyler against Doe.
So I would just try to make sure that people appreciate that saying that this is what you think the determination was, because the issue there was the Texas legislature, the representative of the people of Texas had reacher a certain determination about funding and how they wanted to fund particular activities, and that was what the litigation was about.
It's not a question of whether you believe in educating children or not. I don't think Justice O'Connor didn't believe that children should be educated, but she was in the dissent in that case.
FEINSTEIN: I understand. Let me give you just two human dynamics.
One of the people in public life that I most respect is a mayor in my state of a small immigrant community called Orange Cove. His name is Victor Lopez. I have known him for about 10 years.
I've watched him -- and I'm a former mayor -- try to build a town from nothing. I was there -- there weren't sidewalks; there weren't schools. He has managed to do it. He has given his people a sense of pride -- they're all agricultural workers -- a sense of pride and dignity.
To me, that's the American dream. It's the federal job to keep illegal immigrants out, but once they're here, it's our job to see that they have certain basic rights, I think, among them education.
FEINSTEIN: Another interesting twist to this is in 1986, an amnesty was passed. Plyler was in '82. If the decision had gone the other way, you could have seen the enormous problem would have happened in '86 when all the children -- then legal, absolutely -- still would have been denied school.
So I think that's an interesting twist.
Now, Duke Law School Professor Catherine Fisk examined nine cases heard by you while you were on the Court of Appeals. Her review concluded that you ruled in favor of a corporation each time.
Consequently, she made this prediction, quote: "You're going to be a fairly reliable vote against workers' rights across the board," end quote.
Would you respond to that, please?
ROBERTS: I think the conclusion is wrong. I would suggest that any examination of nine cases is too small of a statistical sample to draw any conclusions of that sort.
I know that i have ruled against corporations on a regular basis on the D.C. Circuit. I think I just saw a study, a more comprehensive one, that suggested I tended to rule against corporations more than the average judge.
I don't want to --- I just skimmed the article, but it's quite often the case, for example, part of a lot of the business on the D.C. Circuit involves regulatory issues. Agencies regulating corporations: Are you ruling in favor of the corporation or the agency? And I know I regularly rule in favor of the agency. Sometimes I rule against the agency.
I'd like to think it depends upon the particular law and the particular facts.
But I haven't seen that study.
ROBERTS: But again, nine cases -- I'm sure you could find nine cases going the other way as well.
FEINSTEIN: Thank you. I want to move on.
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