ConfirmThem

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The group People for the American Way (PFAW) has officially closed its collective mind, and announced its opposition to the nomination of John Roberts. Immediately, the Committee for Justice (CFJ) rebutted Ralph Neas of PFAW. The full CFJ rebuttal is below the fold.

• RALPH NEAS' FOUR JOHN ROBERTS MYTHS AND COUNTING

1. Women's Rights.

Allegation: John Roberts has supported or advocated positions that were harmful to efforts to achieve equality for women.

Response: First, the PFAW criticism of John Roberts's interpretation of Title IX's sex discrimination prohibitions in the education arena is flawed. What PFAW does not tell the reader is that John Roberts's interpretation of the law for the Reagan Justice Department was precisely what the US Supreme Court had ruled. Second, on the issue of whether Title IX plaintiffs should get money damages (a position Roberts opposed on behalf of the Bush Administration), the fact of the matter is that the availability of money damages from Title IX lawsuits has exposed schools to huge liabilities and thereby diverted funds from educational and sports programs, enriching only the trial lawyers who bring these suits. Third, the fact that PFAW faults Roberts for opposing comparable worth shows how out-of-step Neas and his brethren really are on issues of equality.

2. Segregation in Education.

Allegation: Roberts repeatedly took positions that would have had the effect of limiting the ability of people to turn to the federal courts to challenge state and local laws and policies that resulted in unequal access to educational opportunities.

Response: First, it is a mark of thoughtfulness and courage that John Roberts criticized the failed experiment of court-ordered busing legislation; limiting this kind of remedy garnered the support of 22 of 46 Democrats at the time, including Senator Biden. Second, in terms of whether states could have education policies that treat illegal aliens different from everybody else, Roberts was merely stating the view that the Constitution created no special rights here (what is good policy might be a different matter), and four Justices (including Sandra O'Connor) actually agreed with Roberts. Third, in the case PFAW cites pertaining to whether sign-language interpreters need to be provided in the classroom, PFAW's criticism of Roberts's view that the law does not provide such a right once again shows its extreme stripes; six Justices agreed with Roberts's view, including the most liberal Justices, Harry Blackmun and John Paul Stevens.

3. Voting Rights.

Allegation: Regarding the Voting Rights Act, John Roberts fought hard to restore its full effectiveness.

Response: Neas' claim --- namely, that Judge Roberts's warnings about potential constitutional concerns with imposing a nationwide effects test under amendments to section 2 of the Voting Rights Act threatened to severely harm voting rights progress --- have been proven to be unfounded. In fact, Judge Roberts's view was vindicated when the Congress ultimately changed the language of the bill to carve out the constitutionally questionable application Roberts had warned against, namely the creation of a right to proportional representation. Moreover, Judge Roberts's views about the potential constitutional issues surrounding a nationwide effects test proved prescient. For example, half of the full Second Circuit court of appeals, sitting en banc, joined an opinion concluding that it is unclear whether, as a general rule, the results methodology of [the amended section 2 of the Voting Rights Act] is constitutionally valid. Baker v. Pataki, 85 F.3d 919, 928 n.12 (2d Cir. 1996) (en banc) (opinion of Mahoney, J., joined by half of the judges of the Court). And subsequent Supreme Court cases, such as City of Boerne v. Flores, 521 U.S. 507 (1997), have reinforced the validity of Judge Roberts's points.

4. Religious Freedom.

Allegation: Roberts has a record of hostility to the separation of Church and State.

Response: First, John Roberts's criticisms of the Supreme Court's Establishment Clause case law is well within the mainstream of American public life. Justice O'Connor as well as Justice White (appointed by JFK) have agreed with Roberts's view that the case law is unhelpful and does not create principled standards. Even extreme liberals like Larry Tribe and Mark Tushnet have said the same thing in law review articles. Second, Roberts, while at the White House, on at least two occasions edited Reagan speeches in order to be more ecumenical and inclusive in their discussion of God and religion mindful that government should not stigmatize or show preference by talking about religion in an overly sectarian manner. Neas ignores this work by Roberts. Third, while Neas makes note of the fact that Roberts had no quarrel with then Secretary Bennet's criticism of a Supreme Court case striking down the posting of the Ten Commandments in public schools, Neas conveniently omits a memo Roberts wrote for the Reagan administration recommending against the President endorsing a Kentucky resolution that would have required the posting of a religious statement at schoolhouse doors. Roberts felt the issuer needed to be hashed out by the state and the courts and the President should not weigh in.