The Original American Malcontent

Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.

Friday, September 23, 2005

Senator Feinstein Votes Against Judge Roberts

Dear Mr. McAuley:

Thank you for writing me with your thoughts on the
nomination of Judge John G. Roberts, Jr. to replace Chief Justice
William H. Rehnquist on the Supreme Court. I appreciate hearing
from you.

I voted against Judge Roberts' confirmation and have
enclosed the full statement I made in the Judiciary Committee
which further elucidates my position. Please know that I welcome
your thoughts and hope that you will continue to keep me informed
of your opinions.

Once again, thank you for sharing your views with me.
Should you have any additional questions or comments, please feel
free to contact my office in Washington, D.C. at (202) 224-3841.

Statement by Senator Dianne Feinstein in Opposition to the
Nomination of
Judge John G. Roberts Jr. to be Chief Justice
September 22, 2005

Washington, DC - Senator Dianne Feinstein (D-Calif.)
today voted to oppose the nomination of Judge John G. Roberts Jr.
to be Chief Justice. The following is the text of the statement
Senator Feinstein delivered during the Committee meeting:

"There is no question that Judge Roberts is an
extraordinary person. I think there is no question that he has many
stellar qualities, certainly a brilliant legal mind and a love and
abiding respect for the law, and I think a sense of its scope and
complexity as well.

But before taking the momentous step of agreeing that a
nominee serve as the Chief Justice of our Supreme Court, for what
in this case could be over 30 years, I wanted to have a reasonable
sense of confidence that he would uphold certain essential legal
rights and protections that Americans rely on, and rights that
reflect the values and ideals that make our country so great.

I don't ask for certainty.

I don't ask for promises - especially as to how a nominee
would rule in any case in the future - even one as important as Roe
v. Wade.

But I ask for some ability to find a commitment to broad
legal principles that form the basis of our fundamental rights:

* Equal protection under the law, and the ability to
remedy discrimination.

* A basic right to privacy that extends from the beginning
of life to the end of life.

* The ability of the American public to elect
representatives that have the constitutional power and
authority to protect and respond to America's safety,
social, and environmental needs; and

* A view of Executive Power that extends deference -
but within the law.

It's important to know that a Justice will be willing to at
least start with these fundamental rights.

In making the judgment as to how Judge Roberts evaluates
these fundamental rights, I must start with his record.

As a young lawyer in government service, he was involved
in the most important issues of the day and issues that continue to
be critical to this day. He was in positions to advise the most
important lawyers in the Executive Branch.

In these positions, he advanced arguments opposing many
of these fundamental rights, and, when asked whether he disagreed
with any of those positions today - some even more extreme than
his superiors adopted - he did not disagree with virtually any of

I asked him about a series of written comments and margin
notes that appeared to demonstrate a denigrating view of issues
impacting women.

I said it appears he used a very acerbic pen or else he really
thought that way. Then I gave him an opportunity to distance
himself, to say that he was a young lawyer and would not use that
language today, or whatever it might be, to distance himself.

I expected him to admit that the derogatory comments
about women were wrong or that at least he regretted making

Instead, Judge Roberts responded, "Senator, I have always
supported and support today equal rights for women, particularly
in the workplace."
When Senator Schumer asked him a similar question he
received a disappointing response.
Senator Schumer said, "So my question is not the
substance, but do you regret the tone of some of these memos? Do
you regret some of the inartful phrases you used in those memos, a
reference to 'illegal amigos' in one memo?" Again, an easy
question with an obvious response.
Instead, Judge Roberts responded, "Senator, in that
particular memo, for example, it was a play on the standard
practice of many politicians, including President Reagan."

If Judge Roberts had provided different answers to these
questions, he could have easily demonstrated to us that wisdom
comes with age, and a sense of his own autonomy. But he did

Simply put, I didn't find the argument that he was just an
employee doing what his boss wanted him to do to be credible.

When discussing his work while Principal Deputy Solicitor
General, where he argued to overturn Roe and advanced many
other troubling positions, we received similar dispassionate

Not only did he refuse to disavow the tone used in his
earlier memos, he also refused to disavow many of the positions he
advocated while in the Solicitor General's office.

I had hoped he would have given some indication that,
even if he would not tell me what he thought about a particular
case, he would tell the Committee that he believed in a general
right to privacy. But he refused.

Senator Schumer specifically asked whether Judge Roberts
agreed that there is a "general" right to privacy provided in the

His response was, "I wouldn't use the phrase 'general,'
because I don't know what that means."
Then when I couldn't get a sense of his judicial philosophy,
I attempted to get a sense of his temperament and values. And I
asked him about end of life decisions - clearly, decisions that are
gut-wrenching, difficult, and extremely personal.
Rather than talking to me as a son, a husband, a father -
which I specifically requested that he do. He gave a very detached
"Well, Senator, in that situation, obviously, you want to
talk and take into account the views and heartfelt concerns
of the loved one that you're trying to help in that situation,
because you know how they are viewing this."
I also asked him about how he planned to be in touch with
"the problems real people have out there?"
And once again, rather than discussing the importance of
reaching out to communities that he normally would not be in
contact with, and spending time to understand the problems that
average people face, in my communities of Hunters Point, of East
L.A., of some of the agriculture areas of our state, he mentioned
the attendance at soccer games with his family. Now, that is a
slice of life, true, but it is a very narrow slice of life.
His answer failed to recognize the point of the question and
the concern about staying in touch with people who have different
life experiences.
Several Senators asked him about whether he could admit
he made a mistake when he was wrong.
Senator Biden asked him about a very specific legal term
regarding what kind of review the Court should give to cases
involving gender discrimination.

Rather than clarifying his position or admitting he was
wrong to argue for a lesser standard, Judge Roberts said he was
using two very different legal terms interchangeably.
He stated, "And, Senator, the memorandum is using
'heightened scrutiny' the way you use 'strict scrutiny,' which is
scrutiny that's limited to the basis of race."
Now, it seems hard to believe that such a sophisticated
jurist would interchange these two well-defined legal terms. This
was brought to my attention by a lawyer. I didn't know about it. I
have asked other lawyers. They all said this is something you
learn about during the first year of law school. That they are not in
fact interchangeable.
I posed a series of questions regarding the Plyler case,
which had to do with Texas statutes that prohibited illegal alien
children from going to public schools. I asked him, "Do you
believe you were wrong? Could you say you were wrong if you
believed you were wrong?"
And again, I got an unsatisfactory response. I had given
him the memo. I had asked him to review it overnight. The
response I got was, "I have no quarrel with the Court's decision."
I was struck as I reread the transcript by his use of the line
"I have no quarrel with" five times in referencing the Plyler case,
the Eisenstadt case and other cases.
Then I went back and read Judge Thomas' transcript and he
used that phrase numerous times on eight different topics.

And yet when faced with these topics on the Court, he took
a position indicating that he did in fact have a quarrel with the
case. On abortion, on Church and State separation, on precedent,
and on the Commerce Clause he took a clear position that
contradicted his use of the words, "I have no quarrel with it."

So I came to believe that "I have no quarrel with it" is a
term of art of equivocation, frankly.

Judge Roberts used this phrase when discussing 5 topics
adoption rights, the right to privacy as applied to a single person,
Title IX and remedies, the Americans with Disabilities Act and its
application to States, and Plyler.

So does this mean that he, too, will have a quarrel with
these issues when they come before him?

Now, I realized this past week, after reading and rereading
the transcripts and going over his answers to the questions that I
felt that I knew as little about what Judge Roberts really thought
after the hearing as I did before the hearings.

This makes it very hard for me, because he was very young
when he wrote many of these memos.

And yet, when we asked to review his memos from 16
cases when he was Principal Deputy Solicitor General, we were
denied those documents, which denied us the ability to really see
whether his thinking had changed or matured.

What remains is the few years on the Circuit Court, where
virtually all of the 50 cases -- over 40 were unanimous -- were
relatively uncontroversial in the nature of the decision.

So, I can not in good conscience, cast a "yea" vote. I will
cast a "no" vote.

However, I also expect that a majority of my colleagues in
the Senate will vote for his confirmation. I respect their decision.

I take this position mindful of the fact that Judge Roberts
will very likely be our next Chief Justice and I hope and pray that
when he serves in that most important post he will do so in a way
that protects and preserves our Nation's fundamental strengths and
some of our most important laws and protections of people.

I basically believe that once someone has earned a right
they should not lose that right and the rights coming before the
court in this upcoming session and in future sessions are really
critical rights.

I am the only woman on this committee. And when I
started, I said that was going to be my bar. He didn't cross my bar.

Thank you very much."

Sincerely yours,

Dianne Feinstein
United States Senator


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