FLAG: PFLAG Opposes Robert's Nomination

http://www.pflag.org/index.php?id=493

Our community needs to know whether, as a justice, Roberts would look to the sound and
tested science about our community. This is an issue that we believe the Senate should
examine thoroughly.

Roberts and Congress's power to protect our community. Because the GLBT community is
particularly vulnerable to hate violence and discrimination, Congress's authority to prevent
these problems is of vital importance to us. Roberts's record shows that he holds a very
limited view of Congress's authority, and would likely vote with the Court's most conservative
justices in cases challenging civil rights statutes, workplace protections, and hate crimes
legislation.

Roberts as a replacement for Justice Sandra Day O'Connor. Justice O'Connor, who
announced her retirement on July 1, 2005, has often been a critical swing vote in favor of
equality. In Romer v. Evans, she joined a 6-3 majority to strike down an anti-gay law. In
Lawrence v. Texas, she wrote a concurring opinion that Texas's sodomy law violated the
Equal Protection Clause. In Planned Parenthood v. Casey, she voted to uphold Roe v
Wade four justices dissented in that case. In two closely divided cases about public displays
of the 10 Commandments handed down June 27, she voted to protect the separation of
church and state. On all of these areas critical to our civil rights, Judge Roberts has stated
that he holds the opposite position. His elevation to the Court would be a shift away from
equality.

We, and all Americans, deserve better. Our process for arriving at this opposition has been
rigorous. Throughout our careful review of Roberts's record, we have been focused on one
goal: learning whether his lifetime appointment to the nation's highest court would be in the
interest of this community. The evidence indicates that it would not.

As GLBT Americans, we deserve no less than a justice who will uphold our freedoms and
protect our rights. By announcing our opposition today, we do not conclude our work but
rather commence a new stage in our efforts, engaging the community we represent in this
important issue. The confirmation hearings are still ahead, and it is crucial that the Senate
Judiciary Committee make clear that our lives, our liberty, and our equality are on the line.
We acknowledge that our task is not an easy one. But we know that it is the right thing to do
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People For the American Way Report in Opposition to the Confirmation of Supreme Court Nominee John Roberts

Executive Summary

The record of Supreme Court nominee John Roberts demonstrates that his confirmation to the nation's highest court would undermine Americans' rights and freedoms and limit the role of the federal courts in upholding them. People For the American Way calls on the Senate to reject John Roberts' nomination.

The opinions he has issued during his short tenure on the federal bench, the documents from his tenure in senior positions in the Reagan Administration, and what we know of Roberts' tenure as principal deputy solicitor general in the first Bush administration combine to make a compelling case against confirmation.

For much of the past 25 years, Roberts worked to impede or undermine progress toward realizing the Constitution's promise of equal justice under law. He has been an active participant in efforts to advance a legal and judicial ideology grounded in a narrow view of constitutional rights and a restricted role for the federal courts in protecting and enforcing them. As a federal judge, he has indicated support for an approach to the Constitution that would undermine the authority of Congress to take action for the common good in areas such as environmental protection.

As special assistant to the Attorney General in the Reagan Administration, and later as a key legal strategist in the Reagan White House counsel's office, Roberts was an aggressive participant in the administration's attempts to restrict fundamental constitutional and civil rights. In fact, Roberts often came down to the right of ultraconservative legal luminaries, including Robert Bork, William Bradford Reynolds, and Ted Olson. He supported the legality of radical proposals to strip the courts of jurisdiction over certain school desegregation remedies, abortion, and school prayer. He denigrated what he referred to as the "so-called" right to privacy, resisted attempts to fully restore the effectiveness of the Voting Rights Act, and worked against measures aimed at increasing gender equity. As the Washington Post has reported, at times he was "derisive, using words such as 'purported' and 'perceived' to describe discrimination against women."

When Roberts became top deputy to solicitor general Kenneth W. Starr in 1989, he continued to advance a right-wing agenda. He urged the Court to limit the remedies women could seek when their rights under Title IX were violated. And he asked the Court to overturn Roe v. Wade, saying it has "no support in the text, structure or history of the Constitution."

suggested that Congress lacked the power under the Commerce Clause to protect endangered species in this case. The consequences of such a radical view, if held by a Supreme Court majority, would extend far beyond the Endangered Species Act to many areas of Congressional authority, including such longstanding programs as Medicare and Social Security.

Roberts has written that affirmative action programs were bound to fail because they required "recruiting of inadequately prepared candidates." As deputy Solicitor General he unsuccessfully opposed a federal government agency's affirmative action program designed to diversify media ownership.

The White House has broken with precedent and unfortunately continues to deny the Senate access to key documents from Roberts' time as second-in-command to Ken Start in the solicitor general's office in the Bush I Administration. In the absence of such documents, we must assume that the views expressed in the briefs Roberts signed during his tenure are in fact his own.

Conclusion

John Roberts has spent much of the past two decades in political and legal positions of great influence. The public record that has been revealed over recent weeks demonstrates that Roberts has consistently advocated positions that would undermine Americans' fundamental rights and liberties under the Constitution and federal law.

The confirmation of John Roberts to replace Justice Sandra Day O'Connor would bring dramatic change, move the Supreme Court significantly to the right, and shift the balance of the court to the great and lasting detriment of Americans and the constitutional principles and legal safeguards that protect their families and communities. We urge senators to vote against his confirmation.

PEOPLE
FOR THE
AMERICAN
WAY

John Roberts: The Wrong Choice for Associate Justice,
An Even Worse Choice for Chief Justice

The death of Chief Justice William Rehnquist and President Bush's nomination of John Roberts to succeed Rehnquist have raised the stakes for the Court and the American people exponentially. If confirmed, Roberts would not be one among eight Associate Justices, as when he was initially nominated to replace Justice Sandra Day O'Connor. Instead, he would become the nation's highest ranking judicial officer, with unique powers, influence and responsibilities beyond those of the Associate Justices.

Last month, after an exhaustive examination of John Roberts' public record, we concluded that Roberts' confirmation as an Associate Justice should be opposed. As set forth in two lengthy, detailed reports, we based that conclusion in large measure on Roberts' record of disregard for the laws and remedies that protect Americans from discrimination and his longtime efforts to restrict the role of the courts in upholding Americans' rights and legal protections. To an even greater degree, Roberts' record and the nature of the power and responsibilities of the Chief Justice make Roberts the wrong choice for this powerful lifetime position as the 17th Chief Justice in our nation's history.

The Importance of the Chief Justice

The Chief Justice of the United States is one of our nation's most important and influential public officials. Indeed, as Chief Justice Rehnquist frequently noted, his correct title was "Chief Justice of the United States," not merely "Chief Justice of the Supreme Court." Although the Supreme Court is made up of nine Justices, the Chief Justice has formal and informal powers, duties and responsibilities that exceed those of the eight Associate Justices, giving the Chief Justice a significant opportunity to shape the federal judiciary and the course of American law. Thus, the importance of who is confirmed to succeed Chief Justice Rehnquist cannot be overstated.

"The Chief Justice, as presiding officer of the Court, is responsible by statute for its administration, in addition to hearing cases and writing opinions."3 One of the most important powers wielded by the Chief Justice is the power to assign the writing of the Court's opinion in each case in which the Chief Justice is in the majority. Who writes the Court's opinion in a particular case is critically important, since how the opinion is written — its breadth and scope, its nuances, its reasoning — affects not only the outcome of that case but sets judicial precedent for other cases as well, perhaps for decades to come. John Roberts' disturbing record, as detailed in our reports, now

See PFAW, Final Pre-Hearing Report in Opposition to the Confirmation of John Roberts to the United States Supreme Court (Sept. 2005) (hereafter "Final Pre-Hearing Report") and Report in Opposition to the Confirmation of Supreme Court Nominee John Roberts (Aug. 24, 2005), available at

2

<http://media.pfaw.org/stc/PH-report.pdf> and <http://media.pfaw.org/stc/RobertsOppositionReport.pdf>.

28 U.S.C. § 1.

3 The Supreme Court Historical Society, "How the Court Works: The Chief Justice's Role," <http://www.supremecourthistory.org/03_how/subs_how/03_a15.html> (visited Sept. 8, 2005). 2000 M Street NW Suite 400 Washington, DC 20036