Tuesday, July 19, 2005

Highlights from the 2003 confirmation hearing of Roberts - Part II

Durbin questions Roberts views on racial profiling and mandatory minimums,
"It is an observation which was made several years ago, relative to the issue of racial profiling. I know if I asked you what your position is on racial profiling what you would say, what we would all say. We are opposed to it. It is not just, it is not fair. We certainly do not want it in America.

But I came across some statistics which trouble me, and I have asked virtually every nominee at all sorts of levels, Department of Justice and Judiciary, for a reaction and what they think we should do about the following. I want to make sure I get these numbers right as I give them to you. I am just trying to remember them off the top of my head.

But we have a situation in America today where 12 percent of our population are African-Americans. The Drug Enforcement Administration believes that 11 percent of the drug users in America are African-American, but 35 percent of those arrested for drug violations are African-American, 53 percent of those convicted in State Courts for drug felonies are African-American, and 58 percent of those currently incarcerated in State prison for drug felony are African-Americans.

I would like your reaction to that. You are asking for a major position in the administration of justice, and if we are honest about our opposition to racial profiling, what do these numbers mean in terms of our system of justice, in general terms, and in specific terms, the whole question of minimum mandatory sentencing."

Roberts response,
"I think that sort of statistical disparity ought to spark further inquiry. I mean, it sort of points out we may have a potential problem here, and I think you want to find out what is behind the numbers because any statistical grouping that shows that kind of disparity would suggest that there may be a problem not treating people as individuals, and that is sort of at the core of our constitutional liberties, that we don't group people according to characteristics and say, well, you share this characteristic, and so you must be like this, this and this. We treat people as individuals.

No matter how compelling the statistical evidence may be, it shows that whatever group it is, and 99-whatever percent here is, that's not what due process means, that's not what liberty means, that's not what the various protections of the Bill of Rights mean; that you're part of a group that more often than not is subject to this or does this, and therefore we're going to treat you as a member of a group, rather than an individual.

So that type of disparity, I think, is one that ought to concern people, and spark interest, and call people to look to see what's behind the numbers and why that's the case."

Senator Leahy asks Roberts about the holes in the strict-constructionist approach,
"And you have told NPR you support and originalist approach to constitutional interpretation, saying the reason that that is the way it was in 1789 is not a bad one when you are talking about construing the Constitution. Of course, the Constitution in 1789 did not have the Bill of Rights. To get it ratified--you couldn't have gotten it ratified, States wouldn't have ratified it without that. It allowed African-Americans to be enslaved back then. We had the Civil War amendments, like the 14th, which limited State power to make or enforce laws to deny equal protection to people. So the originalist concept can't be an exact one, can it?"

Roberts reply,
"Well, I think I'd have to say that I don't have an overarching, uniform philosophy. To take a very simple example to make the point, I think we're all literal textualists when it comes to a provision of the Constitution that says it takes a two-thirds vote to do something. You don't look at what was the intent behind that, and, you know, given that intent, one-half ought to be enough.

On the other hand, there are certain areas where literalism along those lines obviously doesn't work. If you are dealing with the Fourth Amendment, is something an unreasonable search and seizure, the text is only going to get you so far. And in those situations--"

Leahy briefly interrupts before Roberts continues,
"even basic concepts like commerce, didn't have to deal with air travel and things of that sort. That doesn't mean they're not covered by the Commerce Clause. Our Constitution is flexible enough to accommodate technological changes of that sort. And I think in some areas--for example, the Supreme Court's jurisprudence on the jury trial right, I argued a case in favor of the jury trial right in the Supreme Court, and I learned more history than I thought I'd ever see again after being a history major in college, because what the Supreme Court has said is you look at what happened at common law at the point in time when the Seventh Amendment was adopted. And if it was on the equity side, you don't get the jury. If it was on the law side, you do. So you read a lot of old history. That doesn't mean that that same approach is going to make sense when you're dealing with other provisions of the Constitution.

So I think I'd have to say that I don't have an overarching, guiding way of reading the Constitution. I think different approaches are appropriate in different types of constitutional provisions."

And that's about it, none of the Senators really paid much attention to Roberts at the hearing, they seemed much more focused on his fellow nominee's. Nonetheless I think these excerpts give a nice overview of how the hearing went previously for Roberts. Obviously a Supreme Court confirmantion hearing will be much more probative and contentious.


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