reasonable efforts to reunite children with their families. Section 1983 is a critical federal provision that ensures that individuals can obtain relief when their federal rights have been violated by state or local officials, and has long been a primary tool for holding states accountable. Any efforts to limit its scope should be viewed as extremely troubling. WOMEN'S RIGHTS Judge Roberts' troubling, dismissive attitude toward gender discrimination and his efforts to undermine a key law preventing it. Throughout his government service, Roberts advocated positions on gender discrimination that are well outside of the mainstream. Indeed, Roberts' writings often seem to reflect outright denial that gender-based discrimination even exists, with memoranda authored by him even referring to "perceived problems of gender discrimination.”* In one memorandum, he ridiculed the concept of equal pay for comparable work as a "radical redistributive concept” and mocked several female Republican members of Congress who had asked the administration not to oppose it in a pending court case.* 44 43 42 During Roberts' tenure in the Reagan Justice Department, he argued that there should be no "heightened judicial review" of laws and policies that discriminate against women. In the gender discrimination case Canterino v. Wilson, in which state prison officials discriminated against women by providing dramatically fewer vocational training and work opportunities than were available to men, Roberts urged his superiors to not intervene in the case because they would be forced to argue in favor of a higher standard of scrutiny.* This is disturbing because the Supreme Court had already ruled - definitively - that laws or policies that discriminated on the basis of gender were required to meet a higher burden under the Equal Protection Clause." Equally troubling is the fact that Roberts also argued against government intervention on the ground that discriminatory treatment of men and women in the prison's vocational programs was "reasonable" in light of "tight state prison budgets," as if cost considerations should somehow outweigh the protection of women (or any group of individuals) from unlawful discrimination. 45 Roberts has also consistently argued in favor of narrowing the scope of Title IX of the Education Amendments of 1972, the key law prohibiting gender discrimination in education." During his tenure in the Reagan Justice Department, Roberts argued in 1981 in favor of a proposal to limit the reach of Title IX by applying it only to schools that received direct federal aid and not indirect federal support such as student loans and grants." While the administration - and eventually the Supreme Court - fortunately rejected his view, the end result would have been to 48 42 Memorandum to Fred. F. Fielding from John G. Roberts, re "Draft 'Status of the States' 1982 Year-End Report," January 17, 1983. 4) Memorandum to Fred F. Fielding from John G. Roberts, re “Nancy Risque Request for Guidance on Letter from Congresswoman Snowe et al.,” February 20, 1984. Memorandum re Canterino v. Wilson, supra note 2. The Department of Justice intervened in the case in support of the plaintiffs, despite Roberts' recommendation, and the district court found that the prison system in question had indeed unlawfully discriminated on the basis of gender. Canterino v. Wilson, 546 F.Supp. 174 (W.D.Ky. 1982). "See, eg. Craig v. Boren, 429 U.S. 190 (1976), Califano v. Westcott, 443 U.S. 76 (1979). . Memorandum to the Attorney General from John Roberts, Special Assistant to the Attorney General, re "Proposed Intervention in Canterino v. Wilson," February 12, 1982. €7 P.L. 92-318 (86 Stat. 235), approved June 23, 1972. Memorandum to the Attomey General from John Roberts, Special Assistant to the Attorney General, re: allow many schools to receive significant federal funding without being required to comply with Title IX's provisions. 50 49 In 1982, Roberts argued that Title IX applied only to specific, individual programs within schools that receive specifically earmarked federal funds," even though the institution as a whole benefits from the funding. When the Supreme Court accepted this argument in Grove City College v. Bell, a dramatic decrease in civil rights enforcement in colleges and universities resulted. Congress clarified that it had intended for educational institutions, rather than specific programs, to be covered under Title IX by passing the Civil Rights Restoration Act in 1987, over the objections of Roberts.52 As Deputy Solicitor General, Roberts again took a position that would have seriously weakened Title IX. In Franklin v. Gwinnett County School District," Roberts co-authored a brief in which he argued that a high school student could not obtain damages under Title IX for years of sexual harassment and sexual abuse by her coach. His overly restrictive view of proper remedies under Title IX was rejected unanimously by the Supreme Court, which found that sexual harassment is an intentional violation of Title IX and that its victims can recover money damages. Roberts position in Franklin, and his restrictive views on Title IX in general, raise serious questions about whether he would allow women to fully vindicate their legal rights. These concerns would also apply to victims of racial and disability-based discrimination seeking redress under Title VI or section 504 of the Rehabilitation Act, which are parallel in structure to Title IX. 54 Judge Roberts' position in Bray v. Alexandria raises questions about his willingness to protect women from discrimination. As Deputy Solicitor General, Roberts co-authored an amicus curiae brief and delivered two oral arguments in Bray v. Alexandria Women's Health Clinic, in support of Operation Rescue's legal position in a case involving trespassing and preventing women from accessing health clinics, tactics that "present[ed] a striking contemporary example of the kind of zealous, politically motivated, lawless conduct that led to the enactment of the Ku Klux Klan Act in 1871 and gave it its name. What is troubling about John Roberts' role in Bray is that he readily threw the weight of the U.S. government behind Operation Rescue's position and against using federal civil rights law to stop aggressive and dangerous tactics from being used to prevent women from accessing health care. In doing so, be once again advanced an overly restrictive view of federal authority to enforce constitutional rights. 49 Memorandum to the Attorney General from John Roberts, re "University of Richmond v. Bell," August 31, 1982. 50 465 U.S. 555 (1984). S Civil Rights Restoration Act of 1987, P.L. 100-259 (102 Stat. 28), approved March 22,1988. 52 Memorandum to Fred F. Fielding from John G. Roberts, re "Correspondence from T.H. Bell on Grove City Legislation, July 24, 1985. 53 503 U.S. 60 (1992). 34 506 U.S. 263 (1993). Judge Roberts' expansive view of administrative power to suspend fundamental due process protections. In Hamdan v. Rumsfeld," Judge Roberts joined an opinion that gave broad leeway to the administration to try suspected terrorists in military tribunals that lack many of the important protections normally available to criminal defendants. Under the ruling, Hamdan would have no right to be present throughout his trial and would not have a right to see all of the evidence against him. Furthermore, the court ruled that Hamdan and similar detainees could not seek judicial relief under the Geneva Conventions. This decision raises serious questions not only about Judge Roberts' views on the separation of powers but also on basic principles of civil and human rights. Judge Roberts' willingness to curtail habeas corpus appeals in death penalty cases. While in the Reagan administration, Roberts called for severely restricting the ability of individuals facing the death penalty to allege constitutional violations in federal court. He asserted that it is rare for "the meritorious claim [to have] anything to do with the petitioner's innocence," and that "the question would seem to be not what tinkering is necessary in the system, but rather why have federal habeas corpus at all?" He later argued that the Supreme Court should hear fewer appeals and stop serving as the "fourth or fifth guesser in death penalty cases." Given the irreversible nature of the death penalty, and the fact that at least 116 individuals have been convicted of capital crimes and then exonerated since 1973," it is irresponsible to so cavalierly dismiss habeas corpus appeals or any other legal safeguard. 59 158 60 Judge Roberts' distorted views on civil and human rights in Africa. Judge Roberts' troubling statements on civil and human rights matters have not been limited to purely domestic issues. A 1982 memorandum included disparaging comments about TransAfrica Forum,° an African American organization that wanted to dismantle apartheid systems around the world, including in South Africa. When asked by Kenneth Starr to respond to a gift magazine subscription from TransAfrica, Roberts wrote: "Sometimes silence is golden. TransAfrica is the American lobby group supporting various Marxist takeover attempts in Africa, particularly in Namibia. The only appropriate reply would be a curt acknowledgment-- not even a 'thanks for the free subscription'--and I think it best not to respond at all. The fact that Randall Robinson is the brother of ABC's Max Robinson does not legitimate the organization.” When Judge Roberts wrote this memorandum, future South African President Nelson Mandela was a political prisoner, and had been incarcerated by the apartheid regime for 18 years. The South African regime was launching cross-border attacks against its neighbors, emboldened by 36 2005 U.S. App. LEXIS 14315 (D.C. Cir. 2005). 57 R. Jeffrey Smith and Jo Becker, Sifting Old, New Writings for Roberts Philosophy, THE WASHINGTON POST, August 21, 2005 at A01. 99 58 Memorandum to Fred F. Fielding from John G. Roberts, re "Chief Justice's Proposals," February 10, 1983. the now-discredited Reagan administration policy of “constructive engagement." With this terse note, Roberts dismissed any notion of the legitimacy of the struggle against apartheid, the rigid legal system of white minority rule imposed through brutal force against the people of South Africa and Namibia. Despite worldwide support for the popular movements that were struggling against apartheid, he omitted any mention of the racist system that was the subject of worldwide concern. His response suggests that he viewed even the historic battle against South Africa's repressive system of apartheid and illegal occupation of Namibia through a distorted ideological prism. The work of TransAfrica - and many other organizations was simply a part of longstanding efforts to win equal rights for people of African descent around the world. CONCLUSION The stakes could not be higher. The Supreme Court is closely divided on cases involving some of our most basic rights and freedoms. The American people want and deserve to know that any new Supreme Court justice will be committed to protecting individual rights, and will put our freedoms ahead of any political agenda. Unfortunately, Judge Roberts' record and testimony fails to show such a commitment, and for that reason, we must oppose his confirmation as Chief Justice. Thank you for your consideration. If you have any questions, please feel free to contact LCCR Sincerely, གི་ཚཚན་ག་ by Steigh's Dr. Dorothy I. Height Wat Halen Wade Henderson Executive Director League of United Latin American Citizens ABOUT LULAC MEMBERS PROGRAMS ADVOCACY EVENTS PUBLICATIONS LINKS Press Release LULAC National Executive Board Unanimously Opposes Roberts Nomination to the Supreme Court John Roberts' Record is Antagonistic toward Immigrant Rights, Voting Rights, Education, August 30, 2005, Media Contact: Brenda Alvarez, (202) 833-6130 Washington, DC - The National Executive Board of the League of United Latin American Citizens The National Executive Board was especially concerned with John Roberts' record in the Plyler v. It is clear through Roberts' limited public record that he has been a consistent advocate of the Furthermore, in a patronizing 1983 memo while he was at the White House, Roberts commented A hard right candidate for a lifetime appointment to the nation's highest court will certainly "This attitude combined with his stance on affirmative action, voting rights and civil liberties has The League of United Latin American Citizens is the oldest and largest Latino civil rights Click here for more information ### |