And on the other hand, one of the Senators this morning spoon-fed
Roberts
with the question something like this: "didn't you help prepare
briefs
while you were in the Solicitor General's office that supported
minority
voting rights and agreed with positions of the ACLU, MALDEF, and
the
Lawyers' Committee for Civil Rights?"
If Judge Roberts was just doing his job when he wrote anti-VRA
memos,
wasn't he just doing his job when he wrote pro-VRA briefs? If
neither of
them reflect his personal beliefs and he claims to have no view on
Section
2 (and won't answer about Section 5 because it scheduled for a
renewal
debate), then do we really know anything about Roberts' beliefs?
Ed Still
At 09:30 AM 9/14/2005, smulroy@memphis.edu wrote:
This exchange really troubled me when I heard it on the radio. It
strikes
me as disingenuous for him to suggest (a) that the memos did not
reflect
his personal views, when some of the internal memos expressed
precisely
that, and were not simply arguing a position assigned to him, and
(b) that
he has insufficient information to have an opinion on the success
of
Section 2. You do not need to actually handle a Section 2 case as
a judge
in order to form an opinion on the matter. It is almost certainly
the
case that he has an opinion on it. If he has some reason for
declining to
answer, he should say so; but to suggest that he has no opinion on
it-and
that the reason he has no opinion is that he has insufficient
information
to form one---is not only disingenuous but insulting.
Up until then, I was ok with Roberts, but this exchange really
irked me,
especially as it followed an exchange in which he claimed that the
canons
of judicial ethics forbade him from answering simple fact
questions about
the chronology of events regarding his consideration of the Hamdi
case
whiel he was interviewing for this job. SJM
Asst. Prof. Steven J. Mulroy
Univ. of Memphis Law School
207 Humphreys
Univ. of Memphis/Memphis, TN 38152
Ofc: 901-678-4494
Fax: 901-678-5210
----------
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Rick
Hasen>Sent: Tuesday, September 13, 2005 6:58 PM
To: election-law
Subject: More on Judge Roberts' Testimony Related to the 1982
Voting
Rights Act
More on Judge Roberts' Testimony Related to the 1982 Voting Rights
Act>
Here is the relevant language from a transcript (see
<http://www.nytimes.com/2005/09/13/politics/politicsspecial1/13text-roberts.html?pagewanted=82>here
and continuing to the next page) of a discussion between Judge
Roberts and
Senator Feingold (there are clearly some things missing or garbled
in this
transcript, but you can get the gist):
ROBERTS: Senator, my personal view of the Voting Rights Act is not
somebody was interested in. You have people who serve on your
staff, and
their job is to help you implement your views as a senator.
FEINGOLD: I'm not questioning what your view was then...
ROBERTS: I'm just saying...
FEINGOLD: ... I'm asking what you think now, having -- this is
pretty
settled area; I think you'd agreeing -- having seen all this,
having been
intimately involved in it, knowing it as well as you do, do you
believe
that the intent test was still the more appropriate standard by
which to
evaluate vote dilution claims?
ROBERTS: Senator, I haven't studied the Voting Rights Act to
determine
whether the intent test or the effects test would have different
results
in different cases under section two. I'm in no position to make a
judgment on that.
FEINGOLD: It would be my sense that you would be a person who
would, with
your enormous abilities and background, to have some sense about
that.
Obviously, understand that requiring a voter to prove any
additional
factor makes it harder for the voter to win the case and that to
prove the
intent of an entire legislative body can be very difficult,
especially
when a voting system was put in place many years ago, requiring
African
Americans, Latino voters, many of whom have had limited financial
resources, to find evidence of intent was adding an enormous
hurdle for
them to overcome.
In the Mobile v. Bolden case itself, which was pursued after the
Supreme
Court's decision in 1980 and before Congress amended the law in
1982,
makes it very clear, I think clear to all of us over the years,
how
difficult that standard was.
African Americans from Mobile, Alabama, had been unable to elect
any
candidates to the position of city commissioner for every election
cycle
for something like seven decades. They challenged the method of
electing
city commissioners that allowed the same majority to choose all
the
commissioners all the time in at-large elections, and the evidence
was
very clear that as a practical mater, although African Americans
could
register and vote, they couldn't elect anyone.
But to get relief under the Supreme Court standard, which you
appear to
have supported, they had to go to enormous effort and financial
expense to
prove discriminatory intent, including hiring a historian who
could piece
together the motivations of city officials who had designed the
electoral
system almost 100 years earlier.
In this situation, the administration was not bound by a Supreme
Court
decision in deciding what position to take on the proposed Voting
Rights
Act amendment. So why at that point did you want to make section
two cases
so difficult to prove?
ROBERTS: Senator, you keep referring to what I supported and what
I wanted
to do. I was a 26-year-old staff lawyer. It was my first job as a
lawyer
after my clerkships.
I was not shaping administration policy. The administration policy
was
shaped by the attorney general, on whose staff I served. It was
the policy
of President Reagan. It was to extend the Voting Rights Act
without change
for the longest period in history at that point. And it was my job
to
promote the attorney general's view and the president's view on
that
issue. And that's what I was doing.
FEINGOLD: I recognize that. What I'm trying to figure out is,
given the
fact that you've followed this issue for such a long time, I would
think
you would have a view at this point about whether you were right
about --
or the department, let's say, since you were working for them --
whether
the department was right on seeking to keep the intent test or
whether
time has shown that the effects test is really the more
appropriate test.
ROBERTS: Well, Senator, I haven't followed the issue of the
particular
litigation. I had involvement in some litigation when I was in the
Solicitor General's Office in which we were effective in proving
violations under the Voting Rights Act.
Many of those cases arose under issues under Section 5 -- pre-
clearance
issues -- and not under Section 2. I, as a judge, had a case -- a
three-judge district court case -- again arising under the pre-
clearance
provisions. But I'm certainly not an expert in the area and
haven't
followed and have no way of evaluating the relative effectiveness
of the
law as amended or the law as it was prior to 1982.
FEINGOLD: Well, with all respect, and I realize I should move on
to
another topic, but it just seems how strongly you stated some of
these
memos -- and I understand you were doing your job -- I would think
you'd
have a view today whether or not those strong statements still
make sense.
The point appears to be that Judge Roberts was given a chance to
declare
section 2 a success (see the sources cited in Lowenstein and
Hasen,
Election Law at page 208---noting, inter alia, the post 1982 75%
success
rate in challenges to at large voting districts), as most people
believe
it now is, and he declined to do so. At the same time, he sought
to
distance himself personally from the views in the memos. So we are
getting
really no explicit statements from Judge Roberts about his
personal views
of the benefits of section 2.
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-0019
(213)736-1466 - voice
(213)380-3769 - fax
<mailto:rick.hasen@lls.edu>rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
<http://electionlawblog.org>http://electionlawblog.org