The National Association of Women Lawyers ("NAWL"), Committee for the Evaluation of Supreme Court Nominees, has submitted questions, listed below, to the Senate Judiciary Committee, which it urges the Committee to ask Judge John G. Roberts, Jr., in the public hearings on Judge Roberts's nomination for the position of Associate Justice of the United States Supreme Court. The questions have also been sent to The White House and Judge Roberts. The questions follow an initial review of Judge Roberts's available writings and public statements (see attached NAWL Statement of August 30, 2005).

Proposed Questions For Judge John G. Roberts, Jr.
Nominee For Associate Justice, United States Supreme Court

          Fundamental Rights

1. Your opinion in Tracey v. Hedgepeth (386 F.3d 1148) (2004) refers to a fundamental right as one that is "'deeply rooted in this Nation's history and tradition,'" (quoting Washington v. Glucksberg, 521 U.S. 702(1997)). Does this represent your judicial view?

2. Do you favor an approach to constitutional interpretation that allows for the existence of some fundamental rights (whether it be through the 14th amendment due process or liberty clauses; the 9th amendment; the penumbras; history/tradition; universal principles or some other approach) i.e., is there some methodology that leaves open the possibility of constitutionally-protected rights that may not be closely tied to specific textual phrases in the Constitution?

   If so, how are such fundamental rights ascertained and are they absolute or balanced against legislative encroachments?

3. We suggest a series of questions regarding nine cases (listed below) that had a substantial impact on women's rights, all of which were decided by the U.S. Supreme Court. Questioning for each of the cases:
   • With which opinion would you have been most closely allied if you had been sitting on the U. S. Supreme Court at the time it was decided? Please explain why you would have most closely allied with that opinion.
     
     
   • Alternative question: how would you have decided this case if you had been sitting on the Supreme Court at the time it was decided? Please explain why.

     The nine cases are:

     Gonzales v. Castle Rock, Colorado (2005) (deciding there is no property interest under Due Process Clause in enforcement of domestic violence civil protection order).

     Jackson v. Birmingham Board of Education (2005) (deciding that Title IX included protection from retaliation for a third party reporting violation).

     Stenberg v. Carhart (2000) (deciding that a statute criminalizing the performance of partial birth abortion violates the Constitution because it lacks the requisite exception for preservation of the health of the mother).

     Davis v. Monroe County Board of Education (1999) (deciding that Title IX protects students from sexual harassment by other students).

     U.S. v. Virginia (1996) (deciding that it is improper under the Equal Protection Clause to exclude all women from citizen-soldier training at a state-run university).

     J.E.B. v. Alabama ex rel. T.B, (1994) (deciding that the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender).

     Bray v. Alexandria Women's Health Clinic (1993) (deciding there is no federal cause of action against persons obstructing access to abortion clinics).

     Planned Parenthood v. Casey (1992) (deciding that principles of institutional integrity and the rule of stare decisis require that Roe v. Wade's essential holding be retained).

     Mississippi University for Women v. Hogan (1982) (deciding that the single-sex admissions policy of a state-supported professional school violates the Equal Protection Clause).

   Strict Scrutiny

4. An article that appeared in the American Bar Association Journal (68 ABA Journal 59, Jan. 1982) under the name of William French Smith has been attributed to you. The article has been quoted as stating, "Classifications based on race are suspect and do merit careful scrutiny, in light of the historic purpose of the Fourteen Amendment. Extension of heightened scrutiny to other 'insular and discrete' groups, however, represents an unjustified intrusion into legislative affairs."
   • Did you have any role in drafting this article in whole or in part?
     
     
   • Does the statement represent your current judicial view?
     
     
   • Are there any justifications for going beyond the specific race-based purposes of the post-Civil War amendments to provide for any heightened scrutiny for gender-based classifications?

   Congressional Authority

5. The following 1999 quote has been attributed to you: "We have gotten to the point these days where we think the only way we can show we're serious about a problem is if we pass a federal law, whether it is VAWA or anything else. The fact of the matter is: conditions are different in different states and state laws can be more relevant."
   • Do you acknowledge the accuracy of this quotation?
     
     
   • If not, what was the actual statement made by you?
     
     
6. You supported Congress' attempt to pass legislation prohibiting busing as a remedy, yet you did not approve of VAWA as an appropriate remedy to assist states in addressing issues of domestic violence. How do you reconcile your support of Congress' authority to address appropriate remedies in the one instance yet consider VAWA to have been a misuse of Congress' authority to address appropriate remedies?

7. Do you favor Congress' passing legislation to enact remedies for long standing social inequities when the states have failed to address the issues by implementing effective remedies despite adequate time to do so?

8. How would you describe your views on the following: statutory interpretation, strict reading of language and carrying out legislative purpose?

9. To what extent does Congress have the power to legislate in areas in which women have historically been discriminated against?

10. When, in your view, is cost a legitimate basis for continuing discrimination?

11. Does Congress, in your view, have responsibility for enforcing guarantees of due process and equal protection?

12. Should courts defer to legislative efforts to enforce the guarantees referred to in 11?

13. How would you describe your views on the need (if any) for deference to the legislature?

    Stare Decisis

14. What value do you place in the principles of stare decisis?

15. When is it appropriate, in your view, for a court to reverse a long standing precedent?

16. Some years ago, you wrote an article expressing "extreme doubt" on right to privacy. Is that still your view given that there is precedent establishing right to privacy?

    Women in Law

17. During your years as a practicing lawyer did you observe discrimination against women in your private practice or in the government? If so, what actions did you take to stop it?

18. Since your judicial appointment:
    • How many women have you interviewed for the position of judicial law clerk?
      
      
    • We understand that you have hired only one female law clerk in three classes of clerks. Why have you hired so few female law clerks?

August 30, 2005

STATEMENT BY COMMITTEE FOR THE EVALUATION OF SUPREME COURT NOMINEES REGARDING JUDGE JOHN G. ROBERTS, JR.

The National Association of Women Lawyers, Committee for the Evaluation of Supreme Court Nominees, has completed its initial investigation of the qualifications of Judge John G. Roberts, Jr., for the position of Associate Justice of the United States Supreme Court, following procedures described in the Committee's Mission and Procedures manual (at https://www.abanet.org/nawl/about/sccommitteemanual070505.pdf). The investigation included conducting interviews and reviewing Judge Roberts's available writings and public statements. Consistent with its mission and procedures, the Committee has focused on Judge Roberts's view of laws and decisions that involve women's rights and which have a substantial impact on women, and has inquired into Judge Roberts's history of treatment of female employees, colleagues and attorneys appearing before him in court.

The available record raises questions about Judge Roberts's view of the role of federal courts in ensuring equality of treatment for women and protecting women's rights. As a lawyer and judge, based on interviews the Committee conducted, Judge Roberts has treated individual women lawyers fairly and with respect, has fostered careers of women lawyers, has been helpful in enabling women to address work-life balance issues while advancing professionally, and has been consistently described as respectful to female colleagues, female lawyers appearing before him, and female employees. The Committee's review of Judge Roberts's writings and public statements, however, has raised concerns about the impact of Judge Roberts's judicial philosophy in three broad areas essential to women's rights: (1) the use of state and federal power, (2) laws that have a substantial impact on women, and (3) federal laws intended to protect against discrimination based on sex. The Committee will submit to the Senate Judiciary Committee a detailed list of questions designed to elicit information concerning Judge Roberts's judicial philosophy and approaches to women's rights. We urge the Senate to seek and Judge Roberts to provide such information.

The National Association of Women Lawyers ("NAWL") is the leading national voluntary organization devoted to the interests of women lawyers and women's rights. Founded over 100 years ago, NAWL has members in all 50 states and engages in a variety of programs and activities to advance its mission. For more information about NAWL, go to www.nawl.org. The Committee for the Evaluation of Supreme Court Nominees reviews and evaluates the qualifications of each Presidential nominee to the United States Supreme Court with an emphasis on laws and decisions regarding women's rights or that have a special impact on women. Members of the Committee are appointed by the President of NAWL and include a distinguished array of law professors, appellate practitioners and lawyers concentrating in litigation, with diverse backgrounds from around the country and who work in a variety of professional settings.