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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Friday, July 22
 
Judge Roberts and the Voting Rights Act
Today's Boston Globe has this story on civil rights groups' concerns regarding memos that Supreme Court nominee John Roberts wrote, while an aide in the Reagan Administration. The Globe reports that:
The blacked-out memos show that Roberts drafted op-ed pieces, talking points, and letters to the editor that went out under the name of Attorney General William French Smith to help promote the Reagan administration's efforts to limit the circumstances under which minorities could bring voting-rights claims.
It goes on to note that he later wrote briefs opposing affirmative action programs while in private practice.

These positions have civil rights groups understandably concerned. Theodore Shaw of the NAACP Legal Defense Fund says the statements aren't enough to disqualify Roberts, but heighten the importance of his being forthcoming as his nomination proceeds to the Senate.

My take: The initial instinct of Judge Roberts, like others who have appeared before the Senate, will undoubtedly be to reveal as little as possible about his views. He might, for example, try to portray memos arguing against amendments to the Voting Rights Act (which I discussed here), as simply a reflection of the Reagan Administration's policy. So too, he might seek to characterize his briefs on affirmative action as simply reflecting the views of his clients.

I think this strategy would be a mistake. The problem is that, with such a slender judicial record -- Roberts wasn't appointed to the D.C. Circuit until 2003 -- it's very hard to know what Judge Roberts real views on any of these subjects are. In my view, this means that Judge Roberts should be forthcoming in saying whether he in fact agrees with the positions he was espousing in those cases. It may be the case that he doesn't stand by the positions he's taken in the past, either because he was representing a client (or the Reagan Administration) or because his views have evolved over time. But Judge Roberts shouldn't dodge questions about what his real views are on these questions.

For supporters of the Voting Rights Act, there may be a slender ray of hope as to whether or not he would uphold the constitutionality of that Act, particularly the provisions that are set to expire in 2007 and must be reauthorized in they're to continue after that date. Ironically, it comes from a position he took opposing busing for desegregative purposes. The Washington Post reports here that, while a young lawyer in the Reagan Administration, Roberts took the position that Congress would have the power to enact legislation prohibiting busing in the schools. In taking this position, he disagreed with the strong state sovereignty position advanced by none other than Ted Olson, then an assistant attorney general.

Why do I say that this might bode well for the Voting Rights Act? Because in opposing Olson's state sovereignty argument, Roberts reportedly relied on Congress' authority to enforce the Fourteenth Amendment. The view that Congress has broad authority when it comes to enforcement of the constitutional guarantees in the area of equal protection would actually bode well for upholding a reauthorized Voting Rights Act, in the inevitable event that it's challenged.

This may well be projecting excessive optimism. But it is critical that Roberts be questioned extensively on his views regarding state sovereignty and federalism, particularly when it comes to Congress' power to protect voting rights through legislation. It's also essential that he answer rather than evade these questions.

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Moritz College of Law The Ohio State University