September 1, 2005 The Honorable Arlen Specter Chairman United States Senate Judiciary Committee 711 Hart Senate Office Building Washington, D.C. 20510 The Honorable Patrick Leahy Ranking Member United States Senate Judiciary Committee 433 Russell Senate Office Building Washington, D.C. 20510 Dear Senators Specter and Leahy, As law professors from across the United States, we write to express our opposition to the confirmation of Judge John Roberts to the United States Supreme Court. The record made available to date suggests that Judge Roberts holds a limited view of Congress’ authority to enact key worker, civil rights and environmental protections and a similarly narrow view of the vital role our courts and our government play in safeguarding individual rights, especially civil and women’s rights. In contrast, Judge Roberts holds an expansive view of presidential power and law enforcement authority. If transformed into decisional law, these views, taken together, could produce a government with little power to protect its citizenry and a citizenry with greatly reduced power to protect itself from the abuses of government and other powerful interests. In other words, they could produce a national order contrary to the promises of our Constitution and the rights it guarantees. Congress’ authority to correct nationwide problems. In his very first opinion on the bench, Judge Roberts dissented to express an exceedingly restrictive view of Congress’ authority to enact important regulatory legislation. He suggested that Congress did not have the power, under the Constitution’s Commerce Clause, to protect what he called a “hapless toad” through endangered species laws. No court has ever declared an application of the Endangered Species Act unconstitutional. Judge Roberts’ apparent view of Congress’ authority potentially threatens a wide swath of legislation rooted in the Commerce Clause, including civil rights safeguards, minimum wage and maximum hour laws, clean air, clean water, and workplace safety protections.   Judicial authority to protect individual rights. During his years of service in the administrations of Presidents Reagan and George H.W. Bush, under the banner of so-called “judicial restraint,” Judge Roberts helped push legal policies that sought to weaken the vital, historic role of the federal courts as an enforcer of individual rights, including, prominently, the rights of racial minorities and women. Judge Roberts has shown a lack of appreciation for the importance of remedying this country’s shameful legacy of racial discrimination. Less than twenty years after the enactment of the Voting Rights Act, he opposed reinvigorating Section 2 following the Supreme Court’s decision in Mobile v. Bolden, characterizing the revision as a “radical experiment.” Judge Roberts argued that “violations of § 2 should not be made too easy to prove” since doing so would “provide a basis for the most intrusive interference imaginable by federal courts into state and local processes.” Fortunately, Congress overwhelmingly rejected Judge Roberts’ position, leading to increased minority representation in state and local governments. Judge Roberts also defended the constitutionality of legislation stripping the Supreme Court of its ability to hear desegregation cases and legislation stripping the lower federal courts of their authority to remedy school desegregation with busing. In addition, he condemned a key Supreme Court decision striking down a Texas law allowing schools to deny admission to the children of undocumented aliens; called the Fair Housing Act “government intrusion”; advised the Justice Department not to seek standard remedies in job discrimination cases – offers of employment and backpay – calling them “staggering”; criticized a long-standing executive order requiring federal contractors to set flexible, reasonable goals and timetables, not “quotas,” for hiring more minorities to correct unlawful workplace disparities; asserted that an affirmative action program failed because it “required the recruiting of inadequately prepared candidates”; and as Acting Solicitor General, with final decision-making authority over the government’s position, sought to invalidate the Federal Communication Commission’s affirmative action program in broadcast licensing, an extremely rare move given that the Solicitor General’s Office, pursuant to its statutory mandate, almost always defends federal government policy. Judge Roberts has similarly taken positions that would undermine women’s rights, particularly in the areas of sex discrimination and reproductive choice. While in the Reagan Justice Department, he advocated several positions that would have limited the effectiveness and scope of Title IX, the law barring discrimination against women in education. He also asserted a cost defense to gender discrimination and argued that the Constitution’s equal protection clause should not give heightened constitutional protection to women facing government-sponsored sex discrimination – positions the Supreme Court had rejected. As associate White Counsel in the Reagan White House, Judge Roberts derided bipartisan state and national efforts to fix what he referred to as the “purported gender gap” in job pay, confidently dismissing men’s pay advantage over women as attributable to factors like seniority and women leaving the workforce for family reasons. Later, as deputy Solicitor General, he co-authored a brief arguing that Title IX did not permit a girl who was repeatedly sexually harassed by her teacher to sue for compensatory damages, an argument the Supreme Court rejected, in part for leaving the girl “no remedy at all.” Judge Roberts’ record on reproductive choice is also of great concern. In a brief and on public television, he argued, as principal deputy Solicitor General, that a civil rights law did not protect women from harassment by violent anti-abortion demonstrators at abortion clinics. He also wrote in a government brief that Roe v. Wade “was wrongly decided and should be overruled.” Judge Roberts has taken similarly regressive positions on a host of other federal rights and protections. While in the Reagan Justice Department, he dismissed what he referred to as the “so-called right to privacy” and generally objected to the notion of “fundamental rights,” with specific criticism of Griswold v. Connecticut. He also referred to litigation under 42 U.S.C. § 1983, a landmark law, as the “most serious federal court problem” and decried “the damage” wrought by the Supreme Court’s holding that federal statutory rights were enforceable under Section 1983. As principal deputy Solicitor General, without invitation from the Supreme Court, he weighed in on two cases seeking to restrict Section 1983’s scope, asserting in one that federal courts had no authority to enforce federal Medicaid law and, in the other, that they could not enforce the federal law requiring state child welfare agencies receiving federal funds to make reasonable efforts to keep or reunite foster children with their natural families. Judge Roberts also defended the George H.W. Bush administration’s position that private citizens have limited rights to enforce environmental protections, even where Congress tries to provide them broader enforcement authority. Expanding Executive Authority. On the bench and in the Reagan and George H.W. Bush administrations, Judge Roberts has accorded great deference to the authority of both the president and law enforcement. As to presidential power, he joined a D.C. Circuit decision adopting the Bush administration’s position that detainees designated as “enemy combatants” may be tried for war crimes before military commissions lacking basic procedural safeguards, ruling that the Geneva Convention, which provides trial protections to prisoners of war, is unenforceable in U.S. courts and, alternatively, did not apply to the detainees. In addition, disagreeing with the other judges on a three-judge panel, Judge Roberts adopted the Bush administration’s position that a presidential order validly eliminated lawsuits against Iraqi officials brought by American POWs for torture they suffered during the first Gulf War. During his service in the Reagan administration, Judge Roberts vigorously defended the unfettered exercise of presidential power. Among other things, he embraced the rather extreme libertarian fantasy of reconsidering the constitutionality of and abolishing independent regulatory agencies – like the Federal Reserve Board, the National Labor Relations Board, the Consumer Products Safety Commission and the Occupational Safety and Health Commission – on the theory that they usurp powers reserved for the president. Judge Roberts’ overly deferential view of law enforcement authority is also noteworthy. On the bench, he has rejected several significant claims of improper search and seizure, dissenting in one case where the majority reversed the conviction, breaking from precedent in another to justify the search, and denying relief in a third to a 12-year-old girl who was arrested and detained for eating a french fry on the subway, even though an adult caught doing the same thing would have been given a citation. This limited judicial record is a natural extension of what Judge Roberts advocated in the Reagan and first Bush administrations. As the principal deputy Solicitor General, according to the Wall Street Journal, “his office chose to get involved in dozens of state cases to limit the rights of criminal defendants.” For instance, the office sought to erect new procedural hurdles to federal habeas corpus review of state convictions and to bar certain kinds of habeas claims from being heard, including alleged Miranda violations and claims of actual innocence. As an advisor in the Reagan administration, Judge Roberts advocated overriding the strong ethical and legal prohibitions on law enforcement officials directly communicating with criminal defendants known to be represented by counsel, limiting habeas relief, and curtailing the rule that requires exclusion of evidence obtained in violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures. Expanding the role of religion in public institutions. In the Reagan administration, Judge Roberts approved a speech by Education Secretary Bill Bennett criticizing Supreme Court decisions barring religion in schools as antithetical to “the preservation of a free society”; defended the constitutionality of legislation stripping the Supreme Court of jurisdiction to hear school prayer cases; and called a Supreme Court decision invalidating a religiously-inspired moment of silence “indefensible.” Judge Roberts applauded then-Associate Justice Rehnquist’s dissent for seeking to overturn a landmark precedent – “the Lemon test” – which ensures government neutrality toward religion. As principal deputy Solicitor General, Judge Roberts joined efforts to do what he had tacitly praised Justice Rehnquist for attempting: Judge Roberts co-authored briefs asking the Court to scrap the Lemon test and uphold a school district’s practice of paying clergy to deliver religious prayers at graduation ceremonies. The Supreme Court struck down the practice as impermissibly advancing religion. * * * Judge Roberts is a gifted lawyer with impressive professional qualifications. His existing record, however, demonstrates that he does not appreciate the important role that an independent judiciary plays in safeguarding individual rights and enforcing legal protections. Perhaps additional portions of his record, withheld by the current administration, would tell us something different. Judge Roberts’ 1989-1993 service as principal deputy Solicitor General warrants close examination. The position of second-in-charge of the Solicitor General’s Office was the most important, most influential position Judge Roberts held as a lawyer. And because the position gave him the opportunity to express his legal views on the most important issues facing the nation – voting rights, school desegregation, sex discrimination, access to justice, affirmative action, church-state separation, criminal justice – the limited set of documents sought by Judiciary Committee Democrats could potentially provide the best insight into how he would approach the law if confirmed. The White House’s refusal to disclose these documents, however, leaves the Senate and the American people with the record set forth above. Because Judge Roberts, if confirmed, will replace retiring Justice Sandra Day O’Connor, his views on the law are doubly significant. The current court is closely divided. Justice O’Connor has provided the swing vote in many landmark 5-4 decisions. If Judge Roberts steps into her shoes, he will wield enormous power to shape or reshape the law in many of the areas touched on above, including access to the courts, Congress’ legislative authority, civil rights, women’s rights, privacy rights and worker and environmental protections. Based on the existing record, it is evident that as Justice O’Connor’s replacement, Judge Roberts would move the Court away from preserving these vital safeguards. On the existing record, we do not believe that Judge Roberts warrants a lifetime seat on our nation’s highest court, and we urge the Senate to withhold its consent to his confirmation. Sincerely,