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Ask Senators to Vote No on Roberts

September 21,2005 --After careful review of Judge John Roberts' answers during the four days of Senate hearings on his nomination to be Chief Justice of the United States Supreme Court, the Bazelon Center for Mental Health Law has no choice but to oppose his nomination. We already had very serious concerns about Judge Roberts' expressed positions on disability rights, and his responses to Senators' questions did nothing to allay our fears.

Americans with Disabilities Act at Risk

Judge Roberts repeatedly deflected questions about his positions on Congress's power to enact the Americans with Disabilities Act. This is of enormous importance to people with disabilities. In its 5-4 ruling in Board of Trustees of Univ. of Alabama v. Garret, the Supreme Court held that Congress lacked the power to apply the employment protections in Title I of the ADA to states. In Tennessee v. Lane, a 5-4 majority held that Congress did have the power to apply the guarantee of access to public services in Title II to the states, with respect to access to the courts. Now  the justices will consider Congress' power to enact other important provisions of the ADA, including a case to be argued  November 9^th on the ADA's application to state prisons.

The rights of people with disabilities hang in the balance. During last week's hearings, Senators on both sides of the aisle voiced their concern about this the issue of Congress's authority to pass the ADA, but Judge Roberts did not provide any reassurance to them that he would uphold Congress' power to enact the ADA.

Judge Roberts also refused to say whether he believed the ADA's protections should be interpreted very narrowly, as he had argued to the Supreme Court when he represented the automobile manufacturer in Toyota Motor Mfg. v. Williams. In that case, Roberts argued that the ADA was intended to protect only those he labeled "the truly disabled," and that Congress intended the scope of its coverage to be narrow. In the hearing, he would say only that the ADA should be interpreted consistently with Congress' intent.

Judge Roberts' Record on Disability Rights

Remedies for Rights Violation Endangered

Judge Roberts gave no hint that as the Supreme Court's Chief Justice he would take a different view of Congress' intent to authorize civil rights remedies than the restrictive views he argued as a lawyer.  In Franklin v. Gwinnett County Public Schools, Roberts argued on behalf of the Justice Department that a woman who was sexually harassed and raped by her teacher and sports coach, and was told by the school not to complain, could not seek damages under Title IX. (Title IX prohibits sex discrimination by recipients of federal funds.) Roberts' position was rejected by all nine justices. The court relied on the traditional presumption that courts may draw on all appropriate remedies where Congress has provided a right of action but has not made clear its intent with respect to remedies.  When asked about the Franklin decision at the confirmation hearing, Judge Roberts stated only that the decision involved a matter of Congressional intent. He gave no indication that he views Congressional intent to permit a range of remedies for civil rights violations any less narrowly than what he argued in the Franklin case.

Roberts Would Deny Protections to Medicaid Recipients

Perhaps most troubling for people with disabilities, Judge Roberts' comments at his confirmation hearing strongly suggested that he would vote to deny Medicaid recipients a right to go to court to enforce their entitlement to Medicaid benefits. As a lawyer in the Justice Department, as a Deputy Solicitor General and as a private attorney, Roberts repeatedly pushed ways to restrict the right of individuals to enforce laws where Congress did not explicitly state that individuals had the right to sue -- including Medicaid. 

At his confirmation hearing, Roberts emphasized that it would be easy for Congress simply to state that individuals had the right to sue, and that Congress, rather than the courts, should decide whether a right to sue may be implied. These comments suggest  that Roberts' efforts to restrict individuals' ability to enforce their rights under laws such as Medicaid would continue if he is confirmed.

Rights of People with Disabilities Hang in the Balance

Roberts' nomination is of particular concern because it is for Chief Justice, and in that position he would influence the Supreme Court for decades to come.

Please urge Senators on the Judiciary Committee (see list below) to vote "No" tomorrow,  Thursday, September 22. And please call your own Senators and urge them cast a "No" vote when and if Judge Roberts' nomination reaches the Senate floor.

Act Today!

Call the Capitol switchboard, 202-224-3121. or visit www. congress.org and look up the Senators' direct lines.

Senate Judiciary Committee

Arlen Specter (R-PA), Chair
Orrin Hatch (R-UT)
Charles Grassley (R-IA)
Jon Kyl (R-AZ)
Mike DeWine (R-OH)
Jeff Sessions (R-AL)
Lindsey Graham (R-SC)
John Cornyn (R-TX)
Sam Brownback (R-KS)
Tom Coburn (R-OK)
Patrick J. Leahy (D-VT), Ranking Member
Edward Kennedy (D-MA)
Joseph Biden (D-DE)
Herbert Kohl (D-WI)
Dianne Feinstein (D-CA)
Russ Feingold (D-WI)
Charles Schumer (D-NY)
Richard Durbin (D-IL)

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