Roberts’ HearingsSet to Start Sept. 6
Issuing their first specific demand in a conflict over executive branch documents, Senate Democrats asked the Justice Department on Friday to send them memos and court filings from 16 legal cases Supreme Court nominee John G. Roberts Jr. worked on while he served in the department during the administration of President George H.W. Bush.
Senators of both parties announced their agreement to start televised confirmation hearings Sept. 6, when the Senate returns from summer recess.
Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said Republicans had been concerned that waiting until after Labor Day would not leave enough time to ensure that Roberts, if confirmed, could be sworn in by the start of the Supreme Court’s new session Oct. 3.
“The principal reason for the Republicans’ willingness to begin the hearing on Sept. 6 was the emphasis by [Democratic leaders] of their good faith in moving the nomination process promptly to meet the Oct. 3 date,” Specter said.
The ranking Judiciary Committee Democrat, Patrick J. Leahy of Vermont, promised to work with Specter to meet the deadline, but cautioned that commitments could fall victim to unexpected developments.
“You can work out every single possible contingency, but there’s always something that comes up,” Leahy said. “I suspect the two of us can handle that.”
Leahy said the Democrats’ document request had bearing on senators’ ability to meet the deadline. The White House, which has pressured senators to confirm Roberts before Oct. 3, has asserted attorney-client privilege to withhold memos and other documents from Roberts’ service as deputy solicitor general in the administration of President Bush’s father.
The current administration “has weighed in heavily with demands regarding the Senate’s schedule,” Leahy said. “But we need more than the White House telling us how and when to do our job. We need the White House to be willing to expedite our consideration by making available the materials we need without delay.” Leahy noted that it wasn’t until Friday that the Senate received formal White House notice of Roberts’ nomination, including his FBI background check.
White House spokeswoman Dana Perino said the administration had not seen the Democrats’ letter requesting documents and so had no immediate response.
The materials Democrats requested Friday were from Supreme Court cases in which Roberts wrote briefs or played a significant role in representing the position of the George H.W. Bush administration. Democrats said they had requested 16 cases out of 300-plus that the solicitor general’s office handled during Roberts’ tenure.
Democrats said such documents had been released in the past and should be again, to determine whether Roberts’ legal reasoning was influenced by his political affiliations and whether he could be an impartial justice.
Taking issue with the White House’s assertion of attorney-client privilege, Democrats said the solicitor general did not serve the president but U.S. citizens.
“John Roberts’ client was the nation, the people of America, and it isn’t privileged and should be released,” said Senate Assistant Minority Leader Richard J. Durbin (D-Ill.), a member of the Judiciary Committee. “What we are looking for is a better understanding of his values and whether or not he will uphold basic law in terms of civil rights and women’s rights. If the White House is reluctant to share this information, it’s going to make this process much more difficult.”
Democrats emphasized that previous administrations -- including that of President Reagan when he nominated Robert H. Bork to the Supreme Court -- had released Justice Department memos.
Republicans said the Democrats’ current request was different from the Bork document disclosure. A GOP Judiciary Committee counsel said the Reagan administration released documents on Bork to clear him of allegations of misconduct, not to provide evidence of his judicial reasoning.
The 16 cases that interest Democrats involve civil rights, school busing, abortion, religion and the death penalty. Roberts and the administration’s other lawyers pressed a conservative agenda in the Supreme Court.
Roberts repeatedly urged the high court to make it harder for people to bring claims into federal courts.
For example, Christine Franklin, a high school student who had been sexually harassed by a teacher, sued her school district under Title IX, the federal law that forbids sex discrimination in schools and colleges. Roberts and the solicitor general’s office intervened in the case of Franklin vs. Gwinnett County in 1992 to argue that Title IX did not permit victims of discrimination to sue.
The Supreme Court disagreed, ruling unanimously that the ban on discrimination included a right to sue when the law was violated.
In a Texas case, the court considered whether a death row inmate with new evidence of his innocence had a right to reopen his case in federal court. The solicitor general urged the justices to reject such claims. In a 5-4 decision in Herrera vs. Collins, the high court agreed that claims of “actual innocence” did not justify a federal judge reopening a state death penalty case.
In two environmental cases, Roberts and the solicitor general’s office won rulings that made it harder for environmentalists to mount court challenges to the government’s policies on the environment. In both instances, the court ruled that the conservationists who sued could not prove they were hurt by the policies they complained about. The two cases were Lujan vs. National Wildlife Federation in 1990 and Lujan vs. Defenders of Wildlife in 1992.
In a pair of school desegregation cases, Roberts urged the court to halt long-running busing plans. The justices agreed in Oklahoma City vs. Dowell in 1991 and Freeman vs. Pitts in 1992.
Roberts was acting solicitor general in 1990 when he took the unusual step of refusing to support the Federal Communications Commission in a case before the high court.
Usually, the solicitor general’s mission is to argue the federal government’s case. But when the FCC, at the urging of Congress, adopted a type of affirmative action policy, Roberts refused to defend it. The policy gave blacks and Latinos an edge in the bidding for new broadcast licenses, and it was intended to encourage more diversity on the airwaves.
Roberts argued this racial preference was unconstitutional, a violation of the equal-protection clause in the 14th Amendment. The high court upheld the policy in a 5-4 decision in Metro Broadcasting vs. FCC.
Roberts’ office intervened in two abortion cases to argue that Roe vs. Wade should be overturned. A 1991 case upheld the administration’s rule that doctors and nurses in federally funded family planning clinics could not discuss abortion as an option for their patients. In a 5-4 decision, the court said this rule did not violate the free-speech rights of doctors or their patients.
The next year, the solicitor general’s office intervened in a Pennsylvania case and again urged the court to overturn the abortion right. Instead, in a 5-4 decision in Planned Parenthood vs. Casey, the court said pregnant women had a right to a legal abortion.