Judge John G. Roberts Jr.’s path to the U.S. Supreme Court seemed clear of any serious hurdles late last week, after he survived more than three days of questioning before the Senate Judiciary Committee, including repeated efforts by Democrats to draw him out on several legal issues in education.
Most attempts to expose his views on equal access to education and other school-related issues had limited success, although the nominee to replace the late Chief Justice William H. Rehnquist provided glimmers of his views on a few issues.
Democrats pressed Judge Roberts, now a member of the U.S. Court of Appeals for the District of Columbia Circuit, on a memo he wrote as a young Department of Justice lawyer in reaction to the Supreme Court decision involving the education of immigrant children in Texas.
In its 5-4 decision in Plyler v. Doe in 1982, the court overturned as a violation of the U.S. Constitution’s “equal-protection” clause a state law that had allowed school districts to deny enrolling students who had entered the country illegally.
At the time of the decision, Judge Roberts, then a special assistant to Attorney General William French Smith, co-wrote a memo suggesting that President Ronald Reagan’s administration “could have altered the outcome of the case” if it had joined the case on the side of the state and put forth the philosophy of “judicial restraint.”
Sen. Dianne Feinstein, D-Calif., suggested on Sept. 14 that the memo was telling, because it “urged a narrower reading of the civil rights laws than the administration eventually took.”
Judge Roberts said he was just being a good staff lawyer who was describing a position consistent with his boss’s philosophy of judicial restraint.
To Sen. Feinstein, the stakes were enormous for California, which she said has 12 million immigrants, including at least 3 million people who are there illegally.
“To say that this vast number of children shouldn’t be allowed to be educated, I’d be surprised you’d write something like this,” she said.
Judge Roberts said it was “not a question of whether you believe in educating children or not,” and that he personally agreed that a state should educate children regardless of immigration status.
“The issue there was the Texas legislature, the representative of the people of Texas, had reached a certain determination about funding and how they wanted to fund particular activities, and that was what the litigation was about,” Judge Roberts said.
Sen. Patrick Leahy of Vermont, the ranking Democrat on the Judiciary Committee, questioned Judge Roberts about a brief he signed in the 1991 Supreme Court case of Franklin v. Gwinnett County Public Schools, which involved a school district’s liability for the sexual harassment of a girl by a teacher and sports coach.
Judge Roberts’ brief, which he wrote as the chief deputy U.S. solicitor general under President George H.W. Bush, argued that the girl had no right to sue for monetary damages under Title IX, a position that the Supreme Court rejected unanimously.
“[T]there was no issue in the case about condoning the behavior,” Judge Roberts said last week. “I found it abhorrent then, and I find it abhorrent now. … The issue in the case is: Did Congress intend for this particular remedy to be available?”
Church and State
Sen. Richard J. Durbin, D-Ill., pushed Judge Roberts for his views on the U.S. Constitution’s prohibition against an establishment of religion.
Sen. Durbin said the high court’s decisions this past spring on government displays of the Ten Commandments suggest that there is an active debate on the court over the validity of the so-called Lemon test, a three-part standard for evaluating the constitutionality of government action on religion.
He noted that Judge Roberts, as a lawyer in the first President Bush’s administration, wrote two briefs urging that the Supreme Court replace the Lemon standard with what the senator described as “the legal-coercion test,” which could allow for more religious expression in schools.
Asked for his current view, Judge Roberts replied, “Well, the Lemon test is a survivor, there’s no other way to put it.”
He added: “I think one of the justices recently explained, you know, it’s not so much how good the Lemon test is, it’s that nobody can agree on an alternative to take its place. And there may be something to that.”
Republicans spent much of their time asking friendly questions and expressing their hopes about the direction he might take the Supreme Court.
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Sen. Jeff Sessions, R-Ala., and other Republicans expressed disdain over last week’s ruling by a federal district judge in California that declared public-school-led recitations of the Pledge of Allegiance to be unconstitutional, a decision that is likely to be headed to the Supreme Court.
Sen. Sessions asked whether Judge Roberts might try to bring more consistency to the high court’s church-state rulings.
Judge Roberts replied: “I think everyone would agree that the religion jurisprudence under the First Amendment—the establishment clause and the free-exercise clause—could be clearer.”
The Judiciary Committee is scheduled to vote on Judge Roberts on Sept. 22, with a vote expected by the full Senate before the court’s new term begins on October 3.
A version of this article appeared in the September 21, 2005 edition of Education Week as Roberts Pressed for Views on School Cases