Lambda Legal strongly believes that, in addition to intellect, legal training and experience, another critical measure of whether a nominee to the Supreme Court is qualified to serve is a clear commitment to fairness and equal rights for all Americans, including those who historically have been subjected to discrimination. Indeed, our Constitution entrusts judges with the responsibility of safeguarding the rights of minorities even when they are unpopular. When John G. Roberts was nominated to replace Justice Sandra Day O’Connor, we expressed strong concerns about whether he possessed such a commitment based on positions he had adopted during his brief tenure on the bench or for which he had advocated during his career. When Judge Roberts was quickly nominated to be the Court’s 17th Chief Justice, the significance of those concerns was heightened since the very leadership of the Court is at stake.
At the same time, we at Lambda Legal also recognized that Judge Roberts’s judicial record is limited, and that some of our concerns were based on his advocacy on behalf of the government and other clients and therefore conceivably did not reflect his personal views or judicial philosophy. Thus, until today, we have withheld judgment on the nomination so that Roberts could be afforded every possible opportunity to demonstrate that his commitment to fairness and equal rights made him qualified to serve. We believe our approach has been consistent with the high priority Lambda Legal, as an organization that represents clients in court every day, places on ensuring a fair hearing under all circumstances.
To determine whether Judge Roberts was committed to fairness and equal rights for LGBT people and those with HIV, Lambda Legal prepared a list of 30 substantive legal questions for Senators to ask Roberts during his confirmation hearing. The goal of these questions was not to determine whether Judge Roberts always would support Lambda Legal’s positions, but instead to ensure that LGBT people and those with HIV always would have a fair and equal playing field at the Supreme Court, as the Constitution requires. Thanks in part to our work with Senators’ offices and the advocacy of Lambda Legal members, the substance of a significant number of those questions were asked of Judge Roberts during his confirmation hearings.
Unfortunately, Judge Roberts refused to answer most of those questions. In so doing, he declined the opportunity to affirm that all Americans have the same fundamental rights; he also refused to affirm that LGBT people and those with HIV are an integral part of the fabric of America who, under the law, are entitled to equality and liberty. This raises serious questions whether, under Judge Roberts’s judicial philosophy, the rule of law would fairly apply rather than the rule of those in power. That is of grave concern to all Americans who are different from the majority, because if we cannot believe that the rule of law really means something, then the courts, our Constitution and our very democracy lose their meaning.
Having carefully monitored the testimony during those hearings, we have reached the unavoidable conclusion that Judge Roberts, despite being given every opportunity, has failed to demonstrate that he is committed to fairness and equal rights for all Americans. Among the reasons we reach this conclusion are the following:
1) While Roberts stated that there is a right to privacy in the U.S. Constitution, he refused to elaborate in any meaningful way on its reach. What little can be gleaned from his comments suggests that he could take a very restrictive approach to privacy protections, with an undue emphasis on the country’s history and traditions that could disenfranchise minority groups who historically have been denied those protections.
2) Roberts repeatedly refused to answer questions about whether he agreed with Justice Thomas’s conclusion, dissenting in Lawrence v. Texas, that sodomy laws criminalizing private adult intimacy do not violate the constitutional right to privacy. This suggests that his conception of privacy protections may be so narrow as to allow for gay people to be made criminals for private, consensual intimacy between adults.
3) Roberts also refused to answer repeated questions seeking his views on the Supreme Court’s analysis in Roe v. Wade, making it impossible to know the extent to which he would honor the underpinnings of this well-established precedent. Roe serves as an important foundation for the Supreme Court’s decision to strike down the country’s remaining sodomy laws in Lawrence.
4) Roberts further refused to say whether Congress has the power to enact laws prohibiting discrimination against LGBT people and provided no information about how he would analyze that question. This calls into question his deference to Congress’s power to legislate to protect important national interests, including civil rights for all.
5) Roberts repeatedly refused to provide substantive answers to questions designed to bring to light more information about his judicial philosophy and how he would analyze key constitutional issues.
Commentators have suggested that Judge Roberts’s strategy was to answer just enough questions to be confirmed. Whether Roberts’s strategy will work remains to be seen. But what is clear is that he has refused to provide substantive answers to scores of questions designed to determine whether he is committed to fairness and equal rights for all Americans. In sum, he has not allayed the serious concerns that Lambda Legal expressed when his nomination was first announced.
Because John Roberts has not demonstrated that he possesses all of the qualifications required for a lifetime appointment as Chief Justice of the U.S. Supreme Court, Lambda Legal opposes his nomination, and we urge the Senate Judiciary Committee and the full Senate to vote “NO” on confirmation.