Harkin Stm in Opposition to the Nomination of Judge John

Statement of Senator Tom Harkin (D-IA)

In Opposition to the Nomination of Judge John Roberts

To Be Chief Justice of the United States

 

As Prepared for Delivery 

 

Mr. President, tomorrow, the Senate will vote on the nomination of John 
Roberts to be the 17th individual to serve as Chief Justice of the United 
States.  I have put an enormous amount of contemplation and consideration 
into my vote on Judge Roberts nomination.  

Some may wonder why this has been such a difficult decision for me.  
Clearly, Judge Roberts is an individual of great accomplishment.  He has 
an outstanding educational background and keen legal skills.  He is a 
thoughtful, decent, modest person, impressively knowledgeable about 
Constitutional law and the Court.  I have watched much of the Judiciary 
Committee hearings. I have reviewed briefs and court decisions written by 
Judge Roberts.  I have met with Judge Roberts for more than an hour in my 
office last week, talking one on one.  

What I did not find in the hearings, in Judge Roberts writings, or in our 
meeting, was a clear indication that Judge Roberts understands the 
critical role that the courts play in protecting the civil rights of 
Americans, and in allowing those who have suffered discrimination to be 
able to seek recourse and affirm their rights in federal court.  I was 
seeking some indication that Judge Roberts understands that the issues 
that come before the high court cannot always be viewed with cool legal 
dispassion and detachment, but that the Court and its members play a 
critical role in protecting the powerless in this country.  

And this is of grave concern to me, because the individual who fills this 
Supreme Court vacancy will have the ability to undermine all that we have 
accomplished thanks to the Americans with Disabilities Act.  Judge 
Roberts nomination comes at a time when there is a very significant clash 
occurring between the Supreme Court and the Congress over whether 
Congress has the authority to require the states to comply with 
antidiscrimination laws.  Unfortunately the law caught at the center of 
this clash is the ADA.  

So as I have deliberated on this nomination, the first and foremost 
question in my mind has been this: What kind of Court would the Roberts 
Court be?   Would it be a court that serves as a refuge of last resort 
for the powerless in our society?  Or would it be a Court that will 
continue down a disturbing path seen in the later years of the Rehnquist 
Court, a path that limits the ability of Congress to pass legislation 
that provides meaningful protections to individuals, including the 54 
million Americans with disabilities?  Unfortunately, after carefully 
reviewing the record and talking with Judge Roberts, I am unable to 
conclude that a Roberts Court would guarantee the rights of powerless and 
those with disabilities.  

Mr. President, earlier this year we celebrated the 15th Anniversary of 
passage of the Americans with Disabilities Act.  The ADA prohibits 
discrimination in employment against people with disabilities, and 
requires that the services and programs of local and State governments be 
accessible and usable by individuals with disabilities.  Since its 
enactment, the ADA has provided opportunity and access for 54 million 
Americans with disabilities who, prior to the laws enactment, routinely 
faced prejudice, discrimination and exclusion in their everyday lives.

As members of this body know very well, I was the lead sponsor of the 
ADA.  I championed it because I had seen discrimination against the 
disabled first hand growing up with my brother Frank, who was deaf.  
During his childhood, Frank was sent half way across the state to a 
school for the quote-unquote deaf and dumb.  He was told that his career 
path would be limited, because surely someone who is deaf cannot 
contribute to society.  Throughout his life, Frank experienced active 
discrimination at the hands of both private individuals and government, 
and this served to limit the choices before him.

And Franks experience was by no means unusual, as Congress documented 
extensively prior to enacting the ADA.  As part of writing that bill, we 
gathered a massive record of blatant discrimination against those with 
disabilities.  We had 25 years of testimony and reports on disability 
discrimination.  Fourteen congressional hearings and 63 field hearings by 
a special congressional task force were held in the three years prior to 
passage of the Americans with Disabilities Act.  We received boxes loaded 
with thousands of letters and pieces of testimony gathered in hearings 
and town hall meetings across the country from people whose lives had 
been damaged or destroyed by discrimination.  We had mark ups in 5 
different committees and had over 300 examples of discrimination by 
states.  I know.  I was there.  I was chairman of the Disability Policy 
Subcommittee.

Yet since enactment of the ADA, the Court has repeatedly questioned 
whether Congress had the authority to require states to comply with the 
ADA and, amazingly, whether Congress adequately documented 
discrimination.  In 2000, the Court held that an experienced nurse at a 
University hospital -- who was demoted after being diagnosed with breast 
cancer because her supervisor did not like being around sick people -- 
was not covered by the ADA because she had the misfortune to work for a 
state hospital.  

In contrast, last year, by the narrowest of margins, the Court held that 
Congress did have the authority to require states to make courthouses 
accessible. This year, the Court will look at whether a state is required 
to make a prison accessible.  And there is no guarantee that the Court 
will come to the same result.  Instead, we could end up with a crazy 
patchwork where courthouses are accessible but maybe libraries are not; 
perhaps prisons are accessible but maybe employment offices are not.  
When we passed the ADA, we in Congress didnt forbid employment 
discrimination against the disabled unless they work for the state.  We 
didnt say some services must be accessible.  But that is what the Court 
has been saying.  Talk about judicial activism!  

As a result, 15 years after passage of the ADA, the rights of those with 
disabilities still hang in the balance.  Those rights will be determined, 
in a very significant way, by a potential Roberts Court.  And, as Chief 
Justice, John Roberts personally would have a major role in determining 
whether the balance swings for or against people with disabilities.   If 
Judge Roberts lends his voice to those on the Court who believe in the 
rights of states over the rights of people, individuals with disabilities 
in this country will face enormous setbacks.

Judge Roberts was asked many questions at his hearing about Congressional 
power, the ADA and the rights of the disabled.  I asked him similar 
questions in our meeting.  Judge Roberts chose not to answer those 
questions in any significant or revealing detail.  Without some greater 
assurance that he would give deference to the policies passed by the 
Congress  without assurance that he would be a defender of the ability of 
the less powerful to go to Court and to have their rights vindicated  I 
am left guessing and speculating.  And that is not good enough.

Without clear assurances from him personally, I am left only with Judge 
Roberts paper record.  It is a record that does not bode well for people 
seeking to vindicate their rights.  In the interest of brevity, let me 
cite just one example from Judge Roberts tenure with the Department of 
Justice: the 1982 case of Board of Education v. Rowley.  In the Rowley 
case, a trial court ruled that federal law required the state to provide 
a sign language interpreter for an 8-year-old student who was deaf, and 
the 2nd Circuit Court of Appeals affirmed that decision.  The case then 
went to the Supreme Court, and the Department of Justice had to decide 
whether to support the student, and argue in favor of an interpreter, or 
the local school board, and argue against an interpreter.  In a memo to 
the Attorney General, Judge Roberts said that the lower court decisions 
amounted to an exercise of judicial activism, and the lower courts had 
inappropriately substituted their own judgment of appropriate educational 
policy. 

Mr. President, this was not the language of a lawyer merely representing 
the views of a client.  This was the language of an attorney in a 
policy-making position at the Department of Justice, suggesting that the 
government should have weighed in against the right of a deaf student to 
have access to an interpreter under the Education of the Handicapped Act, 
a predecessor of todays Individuals with Disabilities Education Act.  In 
other words, Judge Roberts thought that this law -- the primary federal 
law to ensure that students with disabilities have access to the same 
educational opportunities as all other students -- should be interpreted 
narrowly, rather than broadly.  That is not the quality I look for in a 
Chief Justice.  I want in a Chief Justice who brings a passion to the 
law, who doesnt lose sight of the real people whose lives and livelihoods 
are profoundly at stake in the Courts decisions.

Some supporters of Judge Roberts have argued that the Rowley case was 
more than two decades ago, and Judge Roberts views on statutory 
interpretation and on the ability of individuals to protect their rights 
through the courts may have evolved since then.  But how are we in this 
body to know that, particularly when the White House has failed to 
provide us with all requested and directly relevant documents?  Of 
greatest interest to me are the decision-making memoranda written by 
Judge Roberts during his tenure as Principal Deputy Solicitor General.  
Again, in his role as the Principal Deputy Solicitor General  a position 
that is sometimes referred to as the Political Deputy  Judge Roberts was 
not merely representing a client, but was involved in crafting the 
Departments legal positions in some of the most important cases in recent 
years.  During his tenure as Principal Deputy, Judge Roberts argued that 
individuals shouldnt be allowed to go to court to enforce their rights 
under the Medicaid statute; that children shouldnt have access to courts 
to enforce their rights under the Adoption Assistance and Child Welfare 
Act; and that courts should take a restrictive view of the remedies 
available under Title IX and other civil rights laws.  Given the decision 
of the White House to withhold these documents from the Senate, I am 
forced to draw my conclusions on what I do know.  

Mr. President, before I conclude with my remarks, I would like to 
describe an example of one of the real people I referenced earlier, a 
woman by the name of Beverly Jones.  Ms. Jones, who testified before the 
Senate Judiciary Committee on Judge Roberts nomination, has been in a 
wheelchair since a 1984 traffic accident.  In 1990  the year we passed 
the ADA  she completed court reporting school and set out to work as a 
courtroom stenographer in order to support her family.  But what she 
found as she traveled throughout the state of Tennessee was that she 
couldnt get to jobs in a great majority of Tennessees courthouses.  She 
was forced to choose between asking complete strangers to carry her into 
the courthouse or into inaccessible restrooms, or to simply turn down 
employment opportunities.  That is an unacceptable choice for a single 
mother supporting two kids.  

Ms. Jones testified to the Committee that she spoke to federal, state and 
local officials about the problem of inaccessible courtrooms, but her 
entreaties were met with indifference  until she filed suit.  I would 
like to quote from Ms. Jones testimony about her experience, because I 
think it vividly illustrates what is at stake here:  The door that I 
thought had been opened [with passage of the ADA] was still closed and my 
freedom to live my dream was still a dream, and turning into a 
nightmare.  Nobody took either me or the law seriously until I and others 
brought a lawsuit.

That, Mr. President, is what is at stake today: The right of Ms. Jones, 
and of 54 million other Americans with disabilities, to live their 
dreams.  And the right of the powerless in our society, the 
disenfranchised, to turn to the courts to take them seriously.  
Unfortunately, I am not yet persuaded that a Roberts Court would protect 
these rights.  

For this reason, I will be voting no on this nomination.  Certainly, I 
bear no personal animosity whatsoever toward Judge Roberts.  Within this 
body, there are many people on the other side of aisle whom I respect, 
admire, and value as friends, but I dont often vote with them because I 
have a different viewpoint on many issues. 

I hope that the future will prove me wrong about Judge Roberts.   I hope 
he proves to be a Justice who recognizes that discrimination in this 
country occurs in many areas, and that Congress has both the authority 
and the duty to remedy it.  

            Judge Roberts will have an immediate opportunity to do just 
that.  In its upcoming term, the Supreme Court will hear arguments in a 
case that will once again examine the question of whether Congress had 
the authority to order states to make public facilities accessible to 
those with disabilities.  

Knowing this, during our meeting, I tried to convey to Judge Roberts how 
discrimination against people with disabilities was deeply ingrained 
across the decades and centuries prior to the ADA. I talked with him in 
detail about how, prior to passage of the ADA, people were 
institutionalized, segregated, taken from their families, taken from 
their communities, excluded from school, excluded from educational 
opportunities, excluded from employment opportunities, excluded from all 
aspects of daily life  shopping, going to the movies, playing golf, and 
on and on  simply because of a disability.  I explained how people with 
disabilities were excluded in the same way African-Americans were 
excluded prior to the passage of the Civil Rights Act.  I hope that, as 
Chief Justice, Judge Roberts keeps these things uppermost in him mind and 
heart.  Time will tell.  




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