Outten & Golden: Empowering Employees in the Workplace

John Roberts Nomination for Chief Justice: Bad News for Workers?

September 21st, 2005 | Paula Brantner

As the nation reeled from the massive destruction caused by Hurricane Katrina, it was also newsworthy that the Chief Justice of the Supreme Court, William H. Rehnquist, passed away following a battle with thyroid cancer. John Roberts, having already been nominated to fill the seat of retiring Associate Justice Sandra Day O’Connor, was quickly nominated by President Bush for consideration as the new Chief Justice. Roberts’ nomination battle became that much more critical, as the individual selected as the next Chief Justice will have the ability to mold the Court for the next few decades. Since Roberts was initially nominated, more about his likely views on employment and civil rights issues has come to light, and should be of key concern to the U.S. Senate when deciding whether to confirm him.

Although Chief Justice Rehnquist had been battling cancer for some time, he had not retired from the Court at the end of this year’s Term as had been widely expected. Instead, Justice O’Connor announced her retirement, effective upon the confirmation of her successor. John Roberts was nominated as Justice O’Connor’s replacement, and his confirmation hearings were initially scheduled to begin this week, once Congress returned from its August recess. Many were calling for the hearings to be postponed, due to Katrina, when the nation learned of the Chief Justice’s passing. The President then quickly moved to announce his intention to nominate Roberts, who formerly clerked for the Chief Justice, for the highest slot on the Court. (See Austin Chronicle article.)

Prior to the investigation of Roberts’ record when he was nominated for Justice O’Connor’s slot, not that much was known about his views on employment issues. As a judge on the DC Circuit Court of Appeals, he has not yet had an opportunity to rule on many employment-related issues, and as a law firm partner, he could argue that he was representing the interests of his client in cases such as Toyota Motors v. Williams. Although there was speculation of course about how Roberts might rule in cases affecting workers, more information was clearly needed. (See blog entry of July 20, 2005.)

More light was shed on Roberts’ views when memos dating from his days as legal counsel for the Reagan administration were released. Roberts wrote internal memos urging President Reagan not to support any form of the proposed Equal Rights Amendment, questioning “whether encouraging homemakers to become lawyers contributes to the common good.” In 1983, Roberts criticized a report applauding state improvements in workplace sex discrimination. Ideas he criticized include a California requirement to consider affirmative action when laying off workers, and a California proposal to require equal pay to men and women in comparable state jobs. (See National Women’s Law Center memo.) Roberts also proposed reining in the Equal Employment Opportunity Commission (EEOC), claiming its civil rights positions were “totally inconsistent” with President Ronald W. Reagan’s policies. (See Bloomberg article.)

Roberts disavowed some of his early civil rights views in last week’s hearings. (See New York Times article.) However, many are unsatisfied with what they consider his evasive answers, and remain unconvinced that he will uphold civil rights protections. Today, Senate Minority Leader Harry Reid and Sen. Edward Kennedy announced that they will oppose the Roberts nomination, citing his civil rights views as key among their reasons for opposition. Sen. Reid stated that “It is now clear that as a young lawyer, John Roberts played a significant role in shaping and advancing the Republican agenda to roll back civil rights protections.” (See Fox News article.) Sen. Kennedy said, in announcing his opposition to Roberts’ nomination:

Based on the record available, there is clear and convincing evidence that Judge Roberts’ view of the rule of law would narrow the protection of basic voting rights. The values and perspectives displayed over and over again in his record cast large doubts on his view of the validity of laws that remove barriers to equal opportunity for women, minorities, and the disabled. His record raises serious questions about the power of Congress to pass laws to protect citizens in matters they care about.

(See Kennedy Floor Statement.)

In the few days left before Roberts’ nomination reaches the Senate floor, Senators will be considering their position on the nomination, and will be heavily lobbied by groups on both sides urging alternatively confirmation or rejection. The hearings did little to alleviate significant concerns about Roberts’ records on issues affecting American workers, so the question is whether issues central to workers will play a role in determining how Senators vote.

For Senators Kennedy and Reid, it is clear that those issues matter. It remains to be seen whether their colleagues will attach similar importance to Roberts’ early hostility to civil rights issues, and what many consider his failure to sufficiently distance himself from those early views.

For More Information:

NELA’s John Roberts page: http://www.nela.org/confirmingjustice.cfm (contains links to many Roberts resources and documents from other groups)

NELA’s Letter to the Senate Judiciary Committee: http://www.nela.org/advocacy/docs/SCt_Roberts_LtrSJC.pdf (This letter urged the Judiciary Committee to ask Roberts specific questions relating to his employment and civil rights views.)

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