9-15-05, 8:39 am
Questioning of John Roberts, President Bush's pick to replace the late William H. Rehnquist as Supreme Court Chief Justice, will continue Wednesday, in the face of complaints that Roberts is deflecting and evading specific answers to questions.
'The answers are misleading,' Sen. Joseph Biden, D. Del., said during Tuesday's hearing.
'The answers may be misleading but they are his answers,' Judiciary Committee Chair Arlen Specter, R. Penn., replied.
In a December 1981 memorandum to Attorney General William French Smith, Roberts referred to a 'so-called right to privacy.' And, in a draft article he prepared for the Attorney General, he used the example of the right to privacy to criticize courts for labeling too many rights as 'fundamental.'
Tuesday, Roberts claimed that his reference to a 'so-called `right to privacy'' was nothing more than a reference to views that former Solicitor General Erwin Griswold expressed in a speech. Civil rights groups say Griswold never used that term.
Roberts also suggested he was merely articulating the administration's position in a 1981 memorandum supporting a proposal to undo long-standing regulations and allow universities to accept federal aid in some programs but discriminate on the basis of race and gender in others.
The administration, however, rejected his advice. Later, in 1985, Roberts wrote that the idea that financial aid to students should not trigger coverage under Title IX and other civil rights laws still 'had a great deal of intuitive appeal.'
While in the Justice Department, Roberts wrote a memo arguing that sex discrimination should not be subject to heightened scrutiny. Tuesday, he claimed he only meant strict scrutiny, the highest level of review, not heightened or intermediate, scrutiny.
Roberts also wrote a memorandum in 1982 arguing the federal government should not oppose a Kentucky prison's discriminatory treatment of female prisoners. Senator Biden asked Roberts Tuesday to explain one of the arguments in his memo - namely that the prison's discriminatory practices could be justified by 'tight prison budgets.'
Roberts again argued that he was just furthering the position of the administration. But civil rights groups say the memo reveals that Roberts used his own personal views in arguing against federal intervention. Roberts also tried to distance himself from several memos he wrote stating opposition to the 'effects' test in Section 2 of the Voting Rights Act, raising questions about its constitutionality. Roberts stated Tuesday that he was merely arguing the position of the Attorney General, not representing his own views.
The memos, however, strongly suggest the views were indeed his own. In one memo, he wrote, 'My own view is that something must be done to educate the Senators on the seriousness of this problem [with the effects test].' Civil rights groups say Roberts' answers Tuesday fail to reveal whether he believes an 'effects' standard passes constitutional muster.
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