[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
CIVIL RIGHTS UNDER FIRE:
RECENT SUPREME COURT DECISIONS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
OCTOBER 8, 2009
__________
Serial No. 111-32
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
MIKE QUIGLEY, Illinois JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois TOM ROONEY, Florida
BRAD SHERMAN, California GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
MELVIN L. WATT, North Carolina F. JAMES SENSENBRENNER, Jr.,
ROBERT C. ``BOBBY'' SCOTT, Virginia Wisconsin
WILLIAM D. DELAHUNT, Massachusetts TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr., STEVE KING, Iowa
Georgia TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan JIM JORDAN, Ohio
STEVE COHEN, Tennessee
BRAD SHERMAN, California
SHEILA JACKSON LEE, Texas
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
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OCTOBER 8, 2009
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Ranking Member,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties.................................... 4
WITNESSES
Mr. Armand Derfner, Derfner Altman & Wilborn
Oral Testimony................................................. 7
Prepared Statement............................................. 9
Mr. Aderson Bellegarde Francois, Associate Professor of Law,
Howard University School of Law
Oral Testimony................................................. 23
Prepared Statement............................................. 25
Mr. Debo P. Adegbile
Oral Testimony................................................. 63
Prepared Statement............................................. 65
Ms. Dahlia Lithwick
Oral Testimony................................................. 83
Prepared Statement............................................. 85
CIVIL RIGHTS UNDER FIRE:
RECENT SUPREME COURT DECISIONS
----------
THURSDAY, OCTOBER 8, 2009
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 11:31 a.m., in
room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Nadler, Conyers, Watt, Scott,
Johnson, Jackson Lee, Sensenbrenner, and Franks.
Staff present: (Majority) David Lachmann, Subcommittee
Chief of Staff; LaShawn Warren, Counsel; and (Minority) Paul
Taylor, Counsel.
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will now come
to order. I thank everyone for attending. I will now begin by
recognizing myself for a 5-minute opening statement.
Today's hearing examines the recent Supreme Court decisions
affecting the civil rights of all Americans. While the Court
has its constitutionality prescribed role, Congress--and
specifically this Subcommittee--do as well.
I want to make it clear from the outset that the purpose of
this hearing is not to question the legitimacy of the Supreme
Court's place in our system of checks and balances. Whether or
not we consider a decision of the Court to be well considered
or clearly erroneous, the rule of law demands that we have a
vigorous and independent judiciary.
As Chief Justice Marshall wrote, ``It is emphatically the
province and duty of the Judicial Department to say what the
law is. Those who apply the rule to particular cases must, of
necessity, expound and interpret that rule.''
In Federalist 78, Alexander Hamilton explains the
importance of this principle in a system of checks and
balances: ``The complete independence of the courts of justice
is peculiarly essential in a limited Constitution. Limitations
of this kind can be preserved in practice no other way than
through the medium of courts of justice, whose duty it must be
to declare all acts contrary to the manifest tenor of the
Constitution void. Without this, all the reservations of
particular rights or privileges would amount to nothing,''
unquote, from the Federalist Papers, a precursor of Marbury v.
Madison.
For this reason, while I have disagreed with the Court on
many occasions, I have always opposed efforts to attack the
institution's legitimacy or its independence. Efforts, such as
stripping the courts of their jurisdiction to decide
constitutional questions or efforts through appropriations to
block enforcement of specific decisions are an assault on the
very rule of law and our constitutional system of government,
the sorts that we saw in this Congress, although unsuccessful,
thankfully, a few years ago.
So, for example, while I have watched in dismay as the
Court struck down the Religious Freedom Restoration Act on what
I believe to be an incorrect reading of section 5 of the 14th
amendment and its recent discovery of an individual right to
stockpile firearms in violation of the clearly expressed will
of the electorate, I recognize that the Court is fulfilling its
function.
I know some of my colleagues have questioned the Court's
jurisprudence in areas of abortion and church-state relations,
and the previous generation--many--in the previous generation
thought the Brown v. Board of Education case was wrongly
decided. Whatever side one is on in any of these issues, any
call for massive resistance is misplaced and dangerous to our
freedoms.
Nonetheless, it is appropriate to examine what the Court
has done and what the effects of those decisions may have on
our rights. Furthermore, it is absolutely correct for the
Congress to respond to the Court's decisions by acting within
our own constitutional sphere of authority.
It would be much simpler if there were a clear and easy
reading of every law and the application of every
constitutional provision. Calling balls and strikes is the job
of umpires, but the justices have a more complicated task.
When many of our best minds disagree strongly on the
meaning of the grand phrases in the Constitution, you need more
than an umpire. No matter how often that ill-considered
metaphor is repeated by senators or judicial nominees, it is
simply false to assume that judges do not interpret or can
avoid interpreting, for that matter, and that they are not
informed in that process of interpretation by their knowledge,
experience and reason. Judges are not simply umpires.
Earlier this year, with the enactment of the Lilly
Ledbetter Fair Pay Act, Congress moved to correct the Court's
misreading of a statute. And last year, I think it was, we
moved to correct the Court's misreading of the Americans with
Disabilities Act against the clear intent of Congress, and we
solved that by passing another statute. That is an appropriate
remedy.
On constitutional rulings, we have fewer options, but we do
need to understand the direction the Court has given us and
legislate accordingly. Where we believe the Court's rulings
have gone too far afield, the Constitution provides the remedy
of a constitutional amendment, albeit a very difficult remedy.
With that in mind, I look forward to the testimony of our
distinguished panel of witnesses today. All three branches of
government face some really difficult challenges in the years
to come. Understanding those challenges is the first step in
fulfilling our constitutional mandate.
With that, I yield back, and I will now recognize the
distinguished Ranking Member of the Subcommittee, the gentleman
from Wisconsin, for 5 minutes for an opening statement.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
During its last term, the Supreme Court was asked to strike
down the 2006 reauthorization of the seminal Voting Rights Act,
but it rejected that invitation, and I expect future challenges
to that legislation will also fail as long as the Supreme Court
continues to respect the role of Congress in enforcing the
protections of the 14th amendment.
The Voting Rights Act of 1965 was amended or reauthorized
in 1970, 1975, 1982, and 1992. And each time, it was amended
and reauthorized on a strongly bipartisan basis. I am proud to
have a leading hand in preserving and strengthening that
essential tradition when the act was last reauthorized in 2006.
That overwhelmingly bipartisan legislation was propelled by
the President--to the President's desk by the force of 13
hearings on the legislation held in the House alone. More were
held in the Senate. As I said on the House floor during debate
on the legislation at that time, that record constitutes one of
the most extensive considerations of any piece of legislation
that the United States Congress has dealt with in the 30 years
I have been honored to serve as a Member of this body.
Indeed, the substantial volume of evidence compiled to
justify reauthorizing the Voting Rights Act far exceeds the
amount of evidence the Supreme Court has found adequate in
other contexts in which Congress's power is less broad than its
power to remedy discrimination.
To give just one example, in Nevada Department of Resources
v. Hibbs, the Supreme Court relied only on the following
sources in holding under--the Congress under the 14th amendment
had the power to enact the Family and Medical Leave Act: a
Senate report citation to a Bureau of Labor Statistics survey
revealing gender disparities in the private sector provision of
parenting leave; submissions from two sources at a hearing that
stated that public-sector parental leave policies differ little
from private-sector policies; and evidence that 15 states
provided women up to 1 year of extended maternity leave, while
only four states provide it for similarly extended paternity
leave; and a House report's quotation of a study that found
that failure to implement uniform standards for parenting leave
would leave Federal employees open to discriminatory and
possibly--open to discretionary and possibly unequal treatment.
In contrast, the record supporting the reauthorization of
the Voting Rights Act assembled by this Committee alone
consists of over 12,000 pages of testimony, documentary
evidence and appendices from over 60 groups and individuals,
including several Members of Congress. There is no right more
fundamental than the right to vote. In a democracy, it is only
the right to vote that can protect all the other rights. That
right is so central to our system of government that it is
protected by five separate amendments to the Constitution,
including the 14th, 15th, 19th, 24th, and 26th amendment.
Through the preclearance process, the Voting Rights Act
alone has done a wonderful job in helping clear discriminatory
obstacles to voting before they have had the time to take root.
But in the end, the evidence presented to Congress was
overwhelming. While progress has been made, much still needs to
be done, and the Voting Rights Act remains as necessary as ever
to maintain that progress.
The few critics opposed to extending the Voting Rights Act
claim that its very success was justification for its
expiration. These critics miss the fundamental point. Without
the Voting Rights Act, we cannot ensure that gains made by
minorities in the past are not jeopardized in the future; nor
can we prevent future abuses from occurring. Even in 2009, we
have not overcome discrimination in voting.
As the House Judiciary Committee report on the legislation
set out, under the preclearance provisions of the Voting Rights
Act, more section 5 objections were lodged between 1982 and
2004 than were interposed between 1965 and 1982. And since
1982, DOJ has objected to more than 700 voting changes that
have been determined to be discriminatory.
In City of Rome v. U.S., the Supreme Court made clear that
the Voting Rights Act extension was plainly constitutional, in
light of the 75-year period of pervasive discrimination it was
attempting to remedy. In that case, the Court held that
statutory remedies were necessary to counter the perpetuation
of 95 years of pervasive voting discrimination. And when one
considers the full extent of voting discrimination in America,
another 25 years of remedial measures appear as plainly
appropriate, given the 95-year history of discrimination it is
intended to combat.
Thank you, Mr. Chairman. And I look forward to our
discussion here today.
Mr. Nadler. I thank the gentleman.
I will now recognize for an opening statement the
distinguished Chairman of the full Committee, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Nadler and Chairman
Emeritus Sensenbrenner.
I think this is a very important direction that the
Constitution Committee is embarking on, reviewing the work of
the courts, especially the Supreme Court, not from a point of
view of whether your political ideology comports with theirs or
not, but whether they are performing in accordance to the
general set of directions and guidelines that we have
established for ourselves to work in. I mean, that is what a
democracy is about. We can change course, as we have
historically here.
And so I want to commend Chairman Nadler for his very
moderate approach to what our work job is here today.
We could be blasting the hell out of the court system, you
know that? Because they have done some perfectly lousy work
over the years, not just recently, but historically. I am in
the process of putting something together on that.
But that wouldn't get us very far. What we are trying to do
is improve the Court, not just criticize the Court. And I join
with my colleague, Mel Watt, in commending Jim Sensenbrenner
for his very important work in this respect.
As Chairman of the Committee and as a Member of the
Committee for almost a couple decades now--and it is very--
three decades now--God, your seniority is piling up here. You
are one of the oldest Members in the Congress, as I figure it
offhand.
Mr. Nadler. I think he means of service, not in chronology.
Mr. Conyers. But it is important that we have Members of
the Judiciary Committee that really see into the full extent of
the role of us to the Supreme Court, especially--and that is
why these witnesses become very important. And I want to praise
the Committee again for the selection of the people that are
before us, because this is what they do. They have been
analyzing, thinking, writing, speaking about this for quite
some time.
And we think there is a lot that can be done to improve the
relationships between the Congress and the courts. As I was
talking with Professor Derfner and his archivist wife earlier
this morning, how do you tell when the Court is misinterpreting
the plain intent of the Congress and running off in a direction
of their own without any basis whatsoever? And then sometimes
when they do have a basis, it is incorrect.
But they pull things out of thin air more frequently than
even the legal community wants to admit to, much less citizens
who have no way of going through hundreds of pages of dense
legal discussion.
And so this is important. I haven't suggested to the
Chairman and the Ranking Member yet that there ought to be yet
another hearing, that this is not a one-hearing subject. There
is a lot to go into. And there is a lot we can do, in terms of
analyzing the work product of the judiciary. It was said
earlier that, if they was some body, if there was some group
that was over the Supreme Court, they would be reversed at
least half the time.
And the response was, there is some group that is over the
Supreme Court, and it is the Congress. And that is in the
Judiciary Committee. The Appropriations Committee can't reverse
the Supreme Court. The Congress can. The Education Committee
can't. The Armed Services, Intelligence Committees can't. This
is the peculiar responsibility that this Committee has in their
relationship to the whole Federal court system. And so I am
very proud of all the Members that serve here.
Mr. Nadler. I thank the gentleman.
In the interest of proceeding to our witnesses and mindful
of our busy schedules, I ask that other Members submit their
statements for the record. Without objection, all Members will
have 5 legislative days to submit opening statements for
inclusion in the record. Without objection, the Chair will be
authorized to declare a recess of the hearing, which I will do
only if there are votes on the floor.
We will now turn to our panel of witnesses. As we ask
questions of our witnesses, the Chair will recognize Members in
the order of their seniority on the Subcommittee, alternating
between majority and minority, provided a Member is present
when his or her turn arrives. Members who are not present when
their turns begin will be recognized after the other Members
have had the opportunity to ask their questions.
The Chair reserves the right to accommodate a Member who is
unavoidably late or only able to be with us for a short time.
I now introduce the distinguished panel of witnesses.
Armand Derfner is a distinguished scholar in residence in
constitutional law at the Charleston School of Law. He is a
nationally renowned civil rights attorney who has argued and
won five cases before the Supreme Court of the United States.
He graduated from Princeton University in 1960 and received his
J.D. at Yale Law School in 1963. He also clerked for the late
David Bazelon, chief judge of the United States Court of
Appeals for the District of Columbia.
Alderson--what? I am sorry. Aderson Francois is the
supervising attorney at the Howard University School of Law
Civil Rights Clinic. He also teaches civil procedure, legal
methods, and Supreme Court jurisprudence. In his practice,
Professor Francois has alternated between commercial
litigation, pro bono death penalty representation, and civil
rights policy analysis.
Before joining the Howard faculty in fall of 2005,
Professor Francois taught at the NYU School of Law. He received
a B.A. from NYU in 1988 and a J.D. from NYU School of Law,
1991, which makes him doubly commendable, since I represent NYU
and since my son is currently a student there. He clerked for
the late A. Leon Higginbotham, Jr., chief judge of the United
States Court of Appeals for the Third Circuit.
Debo Adegbile--I hope I pronounced that right--is the
director of litigation at the NAACP Legal Defense and Education
Fund. He is a civil rights attorney who has argued cases before
the Federal courts. Most recently, he successfully defended the
recently reauthorized section 5 of the Voting Rights Act before
the U.S. Supreme Court in Northwest Austin Municipal Utility
Number One v. Holder. More on that later.
Before taking his current position as director of
litigation, Mr. Adegbile served as the associate director of
litigation and director of the political participation group
with the NAACP LDF, Legal Defense Fund. Prior to joining the
LDF, he was a litigation associate at the law firm of Paul,
Weiss, Rifkind, Wharton & Garrison, where he litigated
commercial and civil rights cases. Mr. Adegbile received his
J.D. from New York University's School of Law 1994 and a B.A.
from Connecticut College.
Dahlia Lithwick is a contributing editor at Newsweek and
senior editor at Slate. She writes Supreme Court dispatches and
jurisprudence and has covered the Microsoft trial and other
legal issues for Slate. Ms. Lithwick received her J.D. in 1996
from Stanford University and a B.A. from Yale University in
1990. She clerked for Judge Procter Hug on the U.S. Court of
Appeals for the Ninth Circuit.
I am pleased to welcome all of you. Your written statements
in their entirety will be made part of the record. I would ask
each of you to summarize your testimony in 5 minutes or less.
To help you stay within that time, there is a timing light
at your table. When 1 minute remains, the light will switch
from green to yellow and then red when the 5 minutes are up.
We will start with Professor Derfner. You are recognized
for 5 minutes, sir.
TESTIMONY OF ARMAND DERFNER,
DERFNER ALTMAN & WILBORN
Mr. Derfner. Thank you very much, Mr. Chairman and Members
of the Subcommittee. It is an honor to appear here today. And
as I count back, I think that, in my career, this is the ninth
time that I have appeared before this Subcommittee or a related
Subcommittee of the House Judiciary Committee, and it is always
a great event for me to come here, because I know that I am
here to assist in the great work of this Subcommittee and doing
the work of the Nation.
My topic today will focus on a specific area, that is, the
Supreme Court's decisions in interpreting the laws of this
Congress that deal with civil rights and civil liberties. And I
will be addressing some of the Chairman's and other Members'
concerns about those decisions.
There was not always such concern. There was once a time
when the Supreme Court and Congress were in better sync. My
first case before the Supreme Court was 40 years ago, the first
major section 5 case under the Voting Rights Act, Allen v.
State Board of Elections.
The Supreme Court in that case took note of the fact that
the law had been passed to enforce the guarantees of the 15th
amendment and make sure that those guarantees were effective.
The court referred to that as a ``laudable goal.'' The court
called the statute a remedial statute which it was obligated to
construe broadly in order to make sure that Congress's goals
were effective. And because of that, the Court did give a broad
interpretation of section 5, which has led to its use as a
protection against voting discrimination since that time.
Sectionq 5 and the Voting Rights Act, in fact, helped to save
this Nation.
Unfortunately, if that same case----
Mr. Nadler. Section 5 of the 14th amendment, you mean?
Mr. Derfner. Section--well, section 5--this is section 5 of
the Voting Rights Act----
Mr. Nadler. Or are you talking about section 5 of the
Voting Rights Act?
Mr. Derfner [continuing]. Which was passed pursuant to
section 5 of the 14th amendment, and the 15th amendment, as
well. Unfortunately, if that case were to come before the
Supreme Court today, the odds are that it would be decided in a
very different way, because today's Supreme Court takes a very
different approach to the job of interpreting this Congress's
laws, even though under the Constitution the Court's job in
interpreting is to interpret what Congress had to say and what
Congress passed.
The proof of the pudding is something I learned in
looking--in preparing for this hearing which astounded me. In
the past several years, Congress has had to go back no fewer
than five times--and probably more--to correct Supreme Court
decisions that misinterpreted Congress's statutes. And I have
listed in my testimony 15 cases the Supreme Court has decided
that Congress has had to correct. There are others that I
haven't listed.
The five statutes were the Civil Rights Restoration Act of
1987, the Civil Rights Act of 1991, the Voting Rights
Amendments of 2006, the ADA amendments of 2008, and most
recently, the Lilly Ledbetter Fair Pay Act of this year. In
each of those cases, moreover, which were all passed by huge
bipartisan margins, the Congress has felt compelled to put in
the preamble findings and purposes that specifically say the
Supreme Court got it wrong. We meant this. The Supreme Court
did not interpret it that way.
It is astonishing to have a record like that, and it really
is a sign to me--especially reading the cases--that the Supreme
Court has been very much out of sync with its proper function
of giving fair interpretation to Congress's meaning.
And it is not over yet. There are cases now that I think
Congress is considering. One case deals with the IDEA,
Arlington District v. Murphy, as well as other cases.
I quoted a dialogue in my testimony in which one
professor--two professors were talking, and one said, ``You
read that statute for all it might be worth rather than for the
least it has to be worth, don't you?'' And that is a very
telling thing, because I think what we see is that the Supreme
Court has been reading Congress's statutes for the least that
they have to be worth as opposed to giving them a fair reading
of what Congress intended.
If I had a piece of advice for Congress, I would say,
``Keep on doing what you are doing. Keep on passing statutes
when necessary to correct the misinterpretations. Keep on
putting in the preambles those very specific references to what
you have had to do.'' And at some point, the message has to get
across. In fact, it would not be a bad idea to write preambles
that say, ``This statute is a remedial one. We intend for it to
be interpreted broadly to achieve our basic purposes.''
Thank you very much.
[The prepared statement of Mr. Derfner follows:]
Prepared Statement of Armand Derfner
__________
Mr. Nadler. Thank you.
I now recognize Professor Francois for 5 minutes.
TESTIMONY OF ADERSON BELLEGARDE FRANCOIS, ASSOCIATE PROFESSOR
OF LAW, HOWARD UNIVERSITY SCHOOL OF LAW
Mr. Francois. Good morning, Mr. Chairman and Members of the
Subcommittee. Thank you for the opportunity to testify before
you today.
The question I respectfully plan to address this morning is
whether and to what extent the United States Supreme Court,
under Justice Roberts, has kept or broken faith with the
constitutional ideal and congressional mandates for respect for
civil rights and human equality.
In preparing for the testimony today, I--and by ``I,'' I
actually really mean my students in the clinic--analyzed every
single civil rights decision that the Court has issued since
the 2005 term, the first term when both Chief Justice Roberts
and Justice Alito served a full term.
I do not propose to bore the Committee today with a full
analysis of these cases. Rather, I wish to emphasize two main
conclusions that it seems to me our analysis shows.
If the question that is posed to the Committee is to what
extent the Supreme Court over the last four terms can be
characterized as being anti-civil rights, the answer to me is
twofold. It is both that the Court has been less anti-civil
rights than some of us might fear, but also far more hostile to
civil rights than many of us are willing to imagine.
By that, I mean this: Over the last 4 years, when
interpreting statutory texts, with notable exception, the
Supreme Court has been relatively solicitous toward civil
rights plaintiffs than respectful of congressional intent. I do
acknowledge that there are some notable exceptions: Ledbetter
being one for example; Ashcroft v. Iqbal being another; Gross
being yet another.
However, in the main, the record of the Court hasn't been
that fundamentally different from, say, that of Chief Justice
Rehnquist, though it has been different than, obviously, under
the Burger court and under the Warren court.
For example, the vast majority of cases, civil rights cases
the Court decides, they do not decide it in the 5-4 split, but
rather fairly unanimous decisions, 9-0, 7-2, 6-3. For example,
in United States v. Georgia, a 2005 opinion authored by Justice
Scalia, that held that Congress had validly abrogated the
states' 11th amendment immunity under the ADA in permitting a
prisoner to sue under title II of the ADA.
That being said, it seems to me that the second conclusion
that one can also draw from the Court's jurisprudence over the
last four terms is that, in contrast to when the Court is
interpreting statutory text, when the Court is actually issuing
constitutional rulings, the Court has adopted an interpretive
stance toward federalism, the Equal Protection Clause, the
commerce clause, the state action doctrine that have severely
limited the ability of plaintiffs to recover in civil rights
cases and also severely restricted Congress's power to issue
new civil rights legislation.
The few examples that I may cite are, for example, the
parents concern versus the out-of-school district case during
the 2006 term in which, for the first time, for the first time
since Brown, the Court adopted the view of equal protection,
which if taken seriously would seriously hamper most
institutions' ability to continue toward the goal of
desegregation.
For another example, in the MUD case I am sure that my
colleague, Debo Adegbile, will address in more detail, while
the Court did uphold the constitutionality--or, I should say,
the Court refrained from truly ruling on the constitutionality
of section 5, there was certainly a tremendous amount of
language in the Court's majority opinion by Justice Roberts
that seriously question whether or not Voting Rights Act
section 5 could withstand what Justice Roberts called a
federalism cost.
And there are more examples that one can think of,
including, for example, the Court's view on Congress's ability
to abrogate the states' 11th amendment immunity. According to
the Court's most recent doctrine, the only time Congress may do
so is when Congress do so in the pursuit of an independent
constitutional right, as opposed to Congress's own finding as
to how to enforce the 14th amendment.
I will not presume to provide the Committee with advice on
whether and how to counteract what many perceive as an
unnecessarily cramped civil rights jurisprudence on the part of
the Court under Justice Roberts. Certainly, insofar as the
Court has sometimes given less than due deference to
congressional intent interpreting statute, delivering quite a
few decisions in the last four terms that could and have been
corrected by legislative amendment.
We talked about Ledbetter. It seems to me it is also
worthwhile to talk about Gross, an interpretation of the ADA
that makes it far more difficult for litigants to recover. We
also talk about Ashcroft v. Iqbal, a decision that has
essentially eliminated supervisory liability under Bivens
action.
However, as important as these legislative fixes may be for
civil rights advocates and litigants, it does seem to me that
the far more formidable challenge posed by the Court's
jurisprudence over the last four terms is not so much its
misinterpretation of statutory texts, but rather its adoption
of a constitutional jurisprudence or federalism, 11th
amendment, state action doctrine, commerce clause power, and
equal protection enforcement clause that have severely limited
the ability of this body to act and pass civil rights
legislation.
While the doctrines of separation of powers and judicial
review legitimately limit Congress's ability to revisit the
Court--to revisit the Court's constitutional rulings, it
nonetheless seems to me a worthwhile project for this Committee
to consider investigating the ways in which it may begin to
challenge the Court to reconsider its ruling on topics as
crucial for the advancement of civil rights as federalism,
equal protection, 11th amendment immunity, state action
doctrine, and commerce clause power.
Thank you very much.
[The prepared statement of Mr. Francois follows:]
Prepared Statement of Aderson Bellegarde Francois
__________
Mr. Nadler. Thank you, sir.
I will now recognize Professor Adegbile for 5 minutes.
TESTIMONY OF DEBO P. ADEGBILE, NAACP LEGAL DEFENSE AND
EDUCATION FUND, INC.
Mr. Adegbile. Thank you, Mr. Chairman.
Mr. Nadler. If I mispronounce that, forgive me.
Mr. Adegbile. Thank you, Chairman Nadler, Chairman Conyers,
Ranking Member Sensenbrenner. It is a great pleasure to be with
you this morning.
Today, I will address myself to the recent Supreme Court
case involving the constitutionality of section 5, an essential
provision with which this Committee is at least as familiar as
am I. I will touch very briefly on three points.
First, I believe it is necessary to consider both the lower
court opinion in the Northwest Austin case and the Supreme
Court opinion in order to get a full picture of Congress's
considered judgment in 2006. I will elaborate on why.
Second, the constitutionality of section 5 reauthorizations
have never before turned upon a strict comparison of voting
discrimination in covered and non-covered jurisdictions. This
question, however, was a key focus of the Supreme Court during
oral argument. And, of course, Congress did, in fact, consider
this question during reauthorization.
However, the litigants in the case did not focus on it in
the briefs. And I want to speak to that issue a little bit so
we can have a clearer understanding of exactly what Congress
did on that question.
Finally--and I think this is very important, whatever one's
view is of the constitutionality of section 5--and particularly
before the ruling in the MUD case, that opinion needs to be
modified by the Supreme Court's re-interpretation of the
bailout provision, which in my view substantially alleviates
some of the constitutional concerns which certain justices and
other commentators have expressed.
Returning to my first point, the principal distinction
between the lower court decision and the Supreme Court decision
is that the lower court began with a close and careful study of
the voluminous record assembled by Congress. The lower court
considered the 16,000 pages, 90 witnesses, 21 hearings, and 10
months of congressional legislative time.
In so doing, the Court noted that Congress found progress
in the area of voting, but also demonstrated convincingly that,
unfortunately, minority voters remain exposed to threats to
their right to vote. Those threats are real and not imagined,
and Congress documented that very carefully.
The lower court on this substantial record, in my view,
properly deferred to Congress's policy judgment that section 5
continues to be necessary. In contrast, the Supreme Court
appeared to focus almost exclusively on the progress without
also focusing on the ongoing discrimination, which Congress
examined. This freed the Supreme Court to delve into policy
questions and re-examine the congressional judgment in a way
that did not paint a full picture of the record assembled by
this body, nor, in my view, did it give full credit to the
Court's own precedents in this important area.
Congress has an important and constitutionally sanctioned
role in this area, and it must be respected by the Court, even
in circumstances where the Court would fashion a different
statute if it was authorized and called upon to do so.
In particular, I will now turn to this question of the
comparison of covered and non-covered jurisdictions. As I
mentioned, this was not a special focus of the briefs in part
because the Supreme Court had already decided this issue in a
number of previous cases.
Nevertheless, Congress did examine this question. In
particular, as this body is aware, there was an elaborate study
of all of the section 2 cases that happened nationwide. Section
2, of course, in contrast to section 5, covers the whole
country. And so, by looking at section 2, we have some metric
about voting discrimination throughout the lands.
What that study found is that 50 percent of the successful
section 2 cases happen in covered jurisdictions, 57 percent.
And that is particularly significant because only a quarter of
the Nation's population lives in those jurisdictions.
It is made even more significant by the fact that those
rulings since 1982 happened even as powerful section 5 was in
place, so there were 600 objections in section 5 covered
jurisdictions which dislodged some of the discrimination that
would have been litigated about in the section 2 context. This
is very serious evidence, and it was evidence that was before
this Congress.
Finally, on the bailout question, the specific point here
is that the way the Supreme Court has interpreted the bailout
statute. That, of course, is the piece of the Voting Rights Act
that allows jurisdictions that can demonstrate what is
effectively a clean bill of health in the area of voting
discrimination can exempt themselves from the necessity of
having to submit their voting changes.
What the Court did in the case, seemingly in contrast to
what Congress had intended, was to allow every single covered
jurisdiction to be eligible to apply for bailout. What this
means is that, if jurisdictions, in fact, feel burdened by the
statute--a notion of questionable reality--then they are able
to come forward and seek bailout to be exempted from the
statute.
I think that Congress should carefully see what happens
with this new interpretation of the bailout statute. But by any
measure, it alleviates some of the constitutional tension which
appeared to concern the Court.
Thank you.
[The prepared statement of Mr. Adegbile follows:]
Prepared Statement of Debo P. Adegbile
__________
Mr. Nadler. Thank you.
And a final witness we will hear from is Ms. Lithwick. I
recognize you for 5 minutes.
TESTIMONY OF DAHLIA LITHWICK, SENIOR EDITOR,
SLATE MAGAZINE
Ms. Lithwick. Thank you, Mr. Chairman. Thank you, Mr.
Chairman and Members of the Subcommittee. And thank you for
this opportunity to speak to you today.
I want to be clear that I am not here as a constitutional
scholar or practitioner like my colleagues. I am just here as a
reporter who has been covering the Supreme Court for 10 years
and trying to tell people why, even though the Court is
mysterious, it really, really matters.
But I also want to be clear that the views that I express
here today are my own and not those of Slate or Newsweek.
I think it is no longer a matter of any real scholarly
dispute that the current U.S. Supreme Court has worked hard in
some ways to roll back what some conservatives have seen as the
worst excesses of the Warren court era, from affirmative action
to expanded rights for criminal defendants to expansive views
of the right to vote that we have talked about today. And at
times, this rolling back has been done boldly and
unequivocally, as in the Seattle schools case, the parents case
that Professor Francois talked about.
But I want to point out that more frequently it happens
very un-dramatically in a series of feints and legal
pirouettes, such as the voting rights case that we just talked
about from last summer.
And the most intriguing part to me as a journalist of all
this is that, whether you are for or against this trend at the
Supreme Court, nobody seems to know about it. It seems to have
utterly escaped our notice as Americans that there is a
profound difference between the Roberts Court and the Rehnquist
Court.
And most of us still think that we live in Sandra Day
O'Connor's America, despite the fact that her visions of
affirmative action, abortion, church-state separation, and
elections law have been eroded quite substantially in a very
short time. Justice O'Connor herself made this point in a
speech in Williamsburg this weekend when she talked about how
the current court has ``dismantled'' her rulings in a few short
years.
I think as a Nation we have just completely missed out on
the truth that the change from Samuel Alito to O'Connor really
made a difference--I am sorry, from O'Connor to Alito.
As an initial matter, I also want to be clear that the
language of judicial activism versus restraint is almost
utterly unhelpful in discussing the Roberts or any other Court.
I think it is political and not legal shorthand for ``I just
don't like the outcome in a case.''
My colleague, Stuart Taylor, observed correctly, I think,
in a column in the National Journal last year that every single
member of the Supreme Court is an activist. And by any of the
approximately six empirical measures of judicial activism--from
overruling enacted acts of Congress, short-circuiting ones own
precedents, overreaching to address issues not briefed in the
case--the Roberts Court is clearly as activist as its
predecessors.
I want to suggest here today that the reason that the
public has not caught on to the very dramatic shift of the high
court has happened very, very--for three very clear reasons.
And I think the first has to do with a really intriguing
intramural split on the Court's conservative wing.
There is no real debate that the Court is more politically
conservative than it has been in decades. This will, I think,
come some day to be seen as the most fundamental legacy of the
Bush era.
A 2008 study by Professor Richard Posner--who sits on the
Seventh Circuit Court of Appeals--and William Landes at the
University of Chicago demonstrated empirically that four of the
five most conservative justices to sit on the Supreme Court
since 1937 are sitting there now. And Justice Anthony Kennedy,
the Court's swing voter, ranked 10th using his empirical
methodology.
But to me, what is interesting is that there is a deep
division between the conservative bloc on the Court, and it has
much less to do with vision than approach. Justices Antonin
Scalia and Clarence Thomas are advocating for bold, clear,
swift changes to the law; Chief Justice John Roberts and Sam
Alito have been inclined to move incrementally, quietly kicking
old precedents, tests, and assumptions to the curb, but never
explicitly renouncing them.
So Scalia and Thomas would overturn old cases; Roberts and
Alito want to step around them. Where Scalia and Thomas urge
striking down acts of Congress, Roberts and Alito chip away at
them.
Even Justice Scalia himself in a concurrence in the
Wisconsin Right to Life case derided his conservative
brethren's unwillingness to just overturn old precedent as
``faux judicial restraint.''
There is a second factor that contributes to the fact that
the steady erosion of civil rights by the Court has gone
undetected. In addition toward this trend toward overruling
precedent by stealth, the Court has made dramatic changes
without any drama by chipping away at the access to courts. Be
it through the doctrines of standing or ripeness, by doing away
with facial complaints, by subtly shifting the burden of proof
on plaintiffs, it is harder and harder for victims of injustice
to get the protections that this Congress seeks to protect them
from. And just yesterday, the Court heard a rather remarkable
case that really calls into question standing doctrine for
establishment clause cases.
Now, nobody is going to say that a change in standing
doctrine is going to make front-page headlines, but it sure
makes it hard to get into a courtroom. And so from
environmental protections to worker protections to civil rights
legislation, the Congress's guarantees of equal justice can
only be as robust as your ability to get into a courtroom. And
I think the Roberts court makes that harder every year. It
never makes the headlines.
The final factor I want to touch on just briefly is that my
colleagues and I are very much to blame in the media for not
pointing out what is really happened in the last few years of
the Roberts court because we are so focused on the next Brown
and the next Miranda. The cases that don't happen that way
become too hard to explain.
I just want to conclude by saying that, when the Court
changes a law, shifts a burden, limits a test, increases
standing requirements, it is changing the law as surely as it
would be doing if it handed down another Brown or another Roe.
And so for scholars, advocates, litigators, anyone concerned
about the erosion of civil rights at the Court, there needs to
be a redoubled effort to think about why this is happening and
think about why the public is missing it.
With the prospect of one, possibly two new vacancies at the
Supreme Court in the coming years, I think the time to look at
these issues is now. Thank you so much for allowing me to speak
to you. I hope I can answer your questions.
[The prepared statement of Ms. Lithwick follows:]
Prepared Statement of Dahlia Lithwick
__________
Mr. Nadler. Thank you very much.
And we will begin the questioning by recognizing myself for
5 minutes of questioning.
Mr. Derfner, in your written testimony, you say, ``The
longstanding precedent held there was an implied private right
of action in statutes passed to protect a class of citizens,
even if there is not a specific authorization for a private
lawsuit. The court said that rule is applicable here. The
guarantee of section 5 might well prove an empty promise unless
the private citizen were allowed to seek judicial enforcement
of the prohibition,'' from an earlier decision.
But this is ancient history. Today's Supreme Court has
outlawed the implied private right of action. Unless Congress
specifically says in a statute that victims can sue, they
can't. Your only recourse is to hope that a government official
or agency will decide to focus on the individual case, and this
is symptomatic of what Ms. Lithwick said a moment ago by
changing the standing and rightness doctrines, by shifting the
burden of proof, by doing away with facial challenges, by
making it harder for people to get into court, we have made it
very difficult for plaintiffs to assert and protect their
constitutional rights.
Could Congress change this by passing a general statute
that says, in the absence of specific language to the contrary,
there is always an implied private right of action to protect
statutory constitutional rights? Could we fix that?
Mr. Derfner. I think that could be very constructive. The
court, again, would get to interpret that, and the question is
whether a court interpreting a statute passed next year would
apply fully what the Congress this year said about a broad
right of action, but I think that would be a very constructive
and good idea.
Mr. Nadler. We couldn't say that, with respect to all
existing statutes, there is an implied right of action going
forward?
Mr. Derfner. That might be a little broad if you said all
existing statutes, but I think if you did it by categories--and
I will give you one comparison. For a long time, there were
questions about the statute of limitations. A lot of statutes
don't specifically have that.
And the Court fumbled around for a number of years trying
to figure out how to do that, and then Congress, about 1990, I
think, passed a catchall and said, for all Federal statutes
from here on that don't have a specific statute of limitations,
it is 4 years. And I think that might be a good model for the
kind of private right of action statute.
Mr. Nadler. Thank you.
Professor Francois, you noted the empirical distinction
that you have catalogues--I suppose would be the word--between
statutory interpretation where the Court in large decisions--9-
0, 7-2--has generally been less dismissive of the clear intent
of Congress as opposed to in civil rights cases, as opposed to
constitutional cases, where I think you said, in a series of 5-
4--basically 5-4 rulings, the Court has gone much farther
afield.
One might characterize it--I would be interested in your
observation--one might characterize it as saying that maybe
there are some people on the Court who think that where
Congress can correct them, they would better be a little
careful, but where Congress can't correct them, except by
constitutional amendment, which is very difficult, they can be
more disrespectful of the clear intent and of precedent and
substituted their own predilections.
Would that be a fair characterization?
Mr. Francois. I suppose that one might characterize it this
way. I think, though, that one encouraging sign in the Court's
jurisprudence is that, as Professor Derfner just pointed out,
when Congress passes as such, to the extent that Congress makes
its intent very, very clear, then they are a fair chance that
the Court will uphold the statute. What Congress can no longer
count on is for the Court to look at its intent and imply any
sort of right of action or the remedies.
So I do believe, though, that in the absence of statutory
text, the Court constitutional jurisprudence, when it comes to
civil rights--and one can choose any one of the areas that I
have just mentioned--it does indicate a certain hostility
toward civil rights in general.
Mr. Nadler. Okay. Thank you.
Let me ask one question, and I am not sure who to direct
this to. In the Northwest Austin Municipal Utility District
case, beyond the narrow ruling permitting that district to
bailouts in the coverage of section 5, the Court included
language in the opinion that appears to raise serious concerns
of the continued constitutional viability of section 5.
Do you think the Supreme Court was sending a message to
Congress, ``You'd better do something about section 5 before we
declare it unconstitutional''? Are they sending us a message?
And what are your concerns about future voter rights cases in
light of this decision?
And let me make it a little more complicated. Starting with
the Boerne case--Boerne--City of Boerne--maybe not starting,
but certainly in that case, and certainly in these cases, the--
and a series of other cases--the Court has indicated that
Congress has to have a record to justify its policy judgments.
Why is that a concern of the Court? Why should the Court be
concerned whether the Congress is intelligent or well based or
not well based in its policy judgments? The electorate should
be concerned, but why is that a constitutional concern of the
Court? And why should it affect the constitutionality of what
we do, whether we have considered all the factors or not? Maybe
that should affect our elections and our intelligence, but why
is the constitutionality of what we do affected by whether we
have done it based on a lot of facts and a lot of study or not?
So there are really two questions. One, is the Supreme
Court sending us a message on section 5 that we had better heed
and do something about it, if we could figure out what to do?
And, two, the second question I just asked. Who wants to do
that?
Mr. Adegbile. Perhaps I will start. I think it is fair to
say that every decision of the Supreme Court sends some signal
when they are interpreting a statute of Congress. The signals
can be more direct or indirect.
I think it was somewhat unexpected that so much of the
opinion focused on a question that the Court was not deciding.
That was not expected as we read the decision. But it is also
fair to say----
Mr. Nadler. Which question? Namely the----
Mr. Adegbile. On the constitutional question. So the Court
essentially did not reach the constitutional question, but
spends the first 11 pages of its 17-page majority talking about
the constitutional question. We call that dicta in ordinary
circumstances----
Mr. Nadler. And the question is, is that sending us a
message?
Mr. Adegbile. Exactly. Yes. You know, why was there so much
focus on the dicta on a question that they were not reaching?
I think it is fair to say that the Constitution in this
area, under the 4th amendment and 15th amendment, calls for a
conversation between Congress and the Supreme Court. Both
bodies have a role, but it is important to note that Congress
has expressed powers in this area, expressed powers that have
been recognized in a whole host of decisions in the voting area
and in other contexts, and even in the Boerne decision, on this
question of Congress doing its homework and what the record
looks like.
There is a not-often-quoted line in Boerne that says that
the analysis in ordinary circumstances does not properly begin
with what the record looks like, but it begins with, who is the
body that is constitutionally appointed to decide? People don't
talk about that line in Justice Kennedy's opinion, but I think
that that is the important--Congress has a role in making sure
that all citizens can vote unfettered. That is the duty that
Congress has.
And it would be remarkable for the Supreme Court,
particularly after the history of the Supreme Court having
struck down voting laws and having seen the country walk
backward after those laws were struck down--and I think
Chairmen Sensenbrenner and Conyers filed a brief on this topic
in the Supreme Court case--it would be extraordinary for the
Court not to take heed of that important history and step over
the line into second-guessing the policy judgment.
But, obviously, the Supreme Court continues to have some
difficulty with the way in which Congress is discharging its
responsibility. That, to me, does not suggest that Congress
should cut and run. But, of course, it is up to this body how
it proceeds.
Mr. Nadler. I thank you. My time is expired. Although I
would like to pursue this, my time is expired.
I now recognize the distinguished Ranking Member of the
Committee for 5 minutes.
Mr. Sensenbrenner. Well, thank you very much, Mr. Chairman.
I am going to pursue this.
As Chairman, I put together the hearings and the construct
on how to assemble the legislative record to justify the
reauthorization in 2006. I think it is fair to say that the
Court did not rule section 5 unconstitutional, but section 5 is
hanging on by a thread now.
And what we did on a bipartisan basis is we started back
looking at the Katzenbach case, which uphold the 1965 Voting
Rights Act law, where they basically deferred to Congress in
making a finding that article I, section 4 of the Constitution
could be overridden because there was such an overwhelming
showing of discrimination when the Voting Rights Act was
passed, and they went to the legislative record and looked at
that.
Well, the legislative record was extensive in 1965. But in
terms of the volume, it paled in comparison to what was done in
2005 and 2006, with 12,000 pages, 13 hearings, 60 witnesses,
lots of submissions from the witnesses and from other concerned
members of the public.
Now, you know, if the Katzenbach construct--which was
directly in point in 1965--isn't any good any more, as the
Court seems to hint, what do we need to do?
And I guess the corollary to this is that the abhorrence of
the extension--only 33 in the House and none in the Senate--
said, well, section 5 signals out some states and doesn't
single out others. My answer to that is that is based on the
record of discrimination.
And they also say that section 5 is unfair to voters,
especially minority voters. And the whole purpose of what was
done in 2005 and 2006 in this very Subcommittee was to protect
the right of minority voters not only to have themselves
registered to vote and to allow themselves access to the
polling place, but to have their votes counted and to be cast
effectively so that they weren't wasted.
So I guess I would like to ask the witnesses, what do we
need to do to fix this? Because I don't have an answer.
Mr. Derfner. I will just agree with what I think Mr.
Adegbile said. I think Congress has done its job. I think the
Subcommittee has, in effect, let a little air in.
In the area of the bailout. That may have been one area
where it was somewhat difficult because many jurisdictions were
not eligible. Now, under the Supreme Court's interpretation,
every jurisdiction is eligible, so if somebody thinks they
ought not to have to be subject to the act, they have an----
Mr. Sensenbrenner. But, Professor Derfner, one of the
complaints that we heard with eligible jurisdiction is that
they didn't want to spend the money to try to get out from
underneath the Voting Rights Act. And that was a legislative
decision based upon the board or the city council or the county
commissioner to decide how to spend the taxpayers' money. And
they must have decided that it wasn't a good use of the
taxpayers' money. So how do we override that decision?
Mr. Derfner. I don't think you have to override that,
because it really isn't very extensive. There have been a
number of jurisdictions that have bailed out. The Supreme
Court, in effect, gave a commercial in one of its footnotes to
a lawyer who has been active. A number of other jurisdictions
have made inquiries. It is not very expensive at all if you are
really eligible. So I think Congress, frankly, ought to sit
tight.
Mr. Sensenbrenner. Anybody else want to try this one?
Mr. Adegbile. It is a difficult question. It is always a
difficult question to determine how you persuade a justice that
may be sitting in the middle of the Court about what the proper
legislative course is.
Mr. Sensenbrenner. But if you would yield to me, give them
too much to read?
Mr. Adegbile. Indeed, that is a fair question, also, except
I think that it was broken down in various contexts in the
brief and others. LDF's brief in the case pointed to more than
six dozen examples not only of discrimination, but of
repetitious violations in the same place to show that section 5
is still necessary.
I think that Congress did its job. And I think that Justice
Scalia's opinion in Lane, where he cautions that the Boerne
test is a flabby test that invites the Supreme Court to come
regularly in conflict with the legislative branch is something
that the Court should revisit.
There is a record here of ongoing discrimination. And
whether or not Congress can fashion a different approach is
something that we will have to consider.
Mr. Sensenbrenner. I thank you for your input on that. I
haven't lost any sleep at night based upon how the Court did
interpret section 5 and what we did. You know, I do think we
did our job. Maybe we overdid it.
My time is up, and I yield back.
Mr. Derfner. I think you did your job superbly.
Mr. Nadler. Thank you, on behalf of all of us.
I now yield 5 minutes to the distinguished Chairman of the
full Committee, Mr. Conyers.
Excuse me, to the gentleman from Virginia, Mr. Scott?
Mr. Scott. Thank you. Thank you. Thank you, Mr. Chairman.
And just following up on the gentleman from Wisconsin, when
you have a constitutional remedy, the remedy has to be narrowly
tailored. And the selection of the states to be covered, on
that basis, the states got covered the old-fashioned way: They
earned it.
And it seems to me that if we did not have the selected
covered states based on some rationale that they earned it
starting off and they can get out if they no longer deserve it
would put even more jeopardy on section 5, because it would not
be narrowly tailored.
Let me go into another area on discrimination cases. We
cured the problem of the paycheck rule. The Supreme Court
decided that the states that had had the paycheck rule, where
the discrimination--the 180-day discrimination clock starts
every time you issue a paycheck, as opposed to the absolutely
absurd idea that if you can get past the 180 days, a group can
come in and say, ``We have been discriminated against,'' and an
employer could say, ``Oh, yeah, we have been doing it for
years. Get on back to work.''
We cured that with statute. Are there other burdens of
proof or statutory areas where we might be able to help things
with statutory changes?
Mr. Francois. I think there are a couple of areas, some
that have already--some decisions that have already been issued
and others that are potentially coming down the road.
There are two that I mention. One involves the age--the ADA
against age discrimination where the Court decided that, in
Gross, in order to make a mixed-motive case, the plaintiff has
to meet the burden of but-for age discrimination would have
occurred. It is an extraordinarily high burden to meet. And if
the burden is transferred from the age field into other areas,
it is going to make it even more difficult to civil rights
litigants.
The other case that I think deserves worthwhile attention
is obviously the one from last term involving Ashcroft v.
Iqbal, where the Court essentially, even though they didn't
have to, just from the procedural posture of the case, simply
eliminated in one fell swoop the supervisor liability in Bivens
action.
Mr. Scott. Say it again?
Mr. Francois. Its supervisor liability. In other words, if
the agent commits a constitutional violation, is it the case
that the supervisor might be liable if, in fact, they are new
or should have known about it? And the Court essentially said
no.
The third area that hasn't occurred yet, but I think is
worthwhile to pay close attention to is actually a case that
will be argued before the Supreme Court a week from today,
Kenny A. v. Perdue, which will determine the standard for
awarding attorney's fees in civil rights litigation.
The narrow question before the Court is whether or not a
judge has discretion to grant an uphold adjustment to an
attorney's fee based on the extraordinary work and results the
attorney has achieved for his or her client. The 11th Circuit
said yes, but one of the judges who wrote the majority opinion
essentially wrote a roadmap to the Supreme Court for how to say
no.
And even though most of us didn't expect that the Court
would have granted cert, the Court granted cert. And they have
every reason to believe that the Court will say no, which will
have a tremendous impact on every single fee-shifting statute
for civil rights lawyers, which, again, will have a very big
impact on civil rights litigation in this country.
Mr. Scott. Did somebody else want to comment on other
things we may have----
Mr. Derfner. Let me just add a little--I agree 100 percent
with Professor Francois. And the interesting thing on that is
that the Court seems to be backtracking even where it has
already decided. In the issue of the attorney's fees, Justice
Powell wrote an opinion in the early 1980's that specifically
said there can be an upward adjustment for exceptional
performance and exceptional results. So if Justice Powell and
other conservative justices of that time believed that, then
for this court to backtrack even from that point is very
significant.
And I would add one case of very--of great significance
that the Congress might consider, and that is a case called
Sandoval. Sandoval is a case a number of years ago in which the
Supreme Court cut back or eliminated the ability to have a
cause of action for a violation of a Federal regulation. And
that has had a very significant effect in cutting back the
ability for Congress to enforce its laws.
Mr. Scott. Thank you. My time is expired.
Mr. Nadler. The gentleman's time is expired.
I will just inform the panel that we are working on
legislative remedies to Iqbal and Gross as we speak.
The gentleman from Arizona, Mr. Franks, is recognized.
Mr. Franks. Well, thank you, Mr. Chairman.
I thank all of you for being here today.
Mr. Adegbile, I know that your statement focuses on the VRA
reauthorization, but the hearing topic today--and, indeed, the
discussion--has been significantly more broad than that than
just the voting issues. And I want to focus on this disparate
impact theory for a moment. It has come under fire in recent
years, as you know, and some even think the theory is wrong on
principle and even should be discarded. And I admit to having
some of my own ambivalence and misgivings and doubts.
I realize the disparate impact theory is traditionally
applied in employment law, but it has also been found to be
pervasive or persuasive by liberal members of the Supreme Court
when policy harms a particular group in other areas, such as
when a state administrator driver's license exam is given in
English only.
So I want to throw out some facts here. And it is going to
be on a--certainly a different topic here, but I would like to
ask you to listen carefully for the disparate impact aspect,
even if the issue itself is rather awkward.
Some African-American groups have pointed out to me and
other Members of Congress that the Federal Government's
subsidization of abortion has disparate impact on the Black
community. And their evidence is essentially as follows.
An estimated 80 percent of abortion clinics are located in
Black or minority neighborhoods. According to the Alan
Guttmacher Institute--that is, of course, the research arm for
Planned Parenthood, the Nation's largest abortion provider--
approximately 50 percent of all Black unborn children are
aborted, as compared to 20 percent of White babies.
And that means that 25 percent of the Black population--or
1 in 4--is missing because they were aborted. And that creates
a smaller population and certainly lessens the political power,
the voting power of African-Americans.
And, of course, they also cite the ill effects of abortion
and the disparate impact on Black women because it is now, as
you know, well established in dozens of studies worldwide that
abortion is strongly linked to extreme preterm birth in
subsequent pregnancies. After just one elective abortion, a
woman is 2 to 12 times more likely to have an extreme preterm
birth, and her baby is 129 times more likely to have cerebral
palsy than a full-term baby.
And, of course, since the higher abortion rate for Black
unborn children, it also equates to about four to five times
the rate of extreme preterm for Black women and White women.
And they are never given this information.
And I know I have said enough about the evidence here.
Getting to the disparate impact issue, the clinics that place
themselves in the Black community that do these abortions are
heavily subsidized by the Federal Government with taxpayer
dollars. And many of these clinics were founded by the old
American Eugenics Society. Some of these clinics were caught on
tape taking money earmarked for Black babies abortion only, in
other words, that they could only earmark this money to abort a
Black child by racist donors. And after this expose, the
Federal Government continued to increase its support of these
clinics the following year.
Now, my civil rights advocates argue very simply: Is the
disparate impact theory applicable here, where we are talking
not necessarily about the denial of a benefit, say, on hiring
or a promotion to a job, but the infliction of a harm, where
some surmise that the disproportionate harm of abortion in the
Black community has even been intentional on some people's
parts?
Is there a disproportionate or disparate impact here on the
Black community? And why or why not?
Mr. Adegbile. I, of course, have not studied those specific
facts that you have laid out. My understanding of the disparate
impact standard is that it is a statutorily created approach in
a number of different statutes. We see it in title VII. We see
the effects test, which is similar, in section 5 of the Voting
Rights Act.
And in circumstances where Congress has recognized that
there is a history of discrimination and that it is difficult
to prove intentional discrimination, even though it may be
happening because discriminators have become more sophisticated
in their approach, then Congress has found that, in certain
circumstances, disparate impact can play a very important role.
And indeed, as I suggest, that has been the tradition in those
two statutes that I have described.
How it would work in this particular context, I don't think
that I am informed to say.
Mr. Franks. Okay. I don't want to ask anything above
anyone's pay grade here, but--well, Mr. Chairman, I would just
suggest that----
Mr. Nadler. The gentleman's time is expired.
Mr. Franks. Thank you, sir.
Mr. Nadler. Do you want to finish your statement?
Mr. Francois. I would just suggest that approximately 50
percent of the Black community being aborted is a
disproportionate and disparate impact. And I hope that it is
considered by the Committee in the future.
Mr. Nadler. Thank you.
The gentleman from Georgia is recognized for 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman.
How can the legislature improve upon the confirmation
process for Federal judges, particularly U.S. Supreme Court
justices, all of the Federal judges whom, by the way, have
lifetime tenure? How can we make sure that they do not deceive
and lie during the confirmation process about their true
intentions?
Mr. Derfner. I think, in the olden days, judges weren't
questioned or nominees weren't questioned. And when Felix
Frankfurter was nominated, he said, ``I am too busy teaching
class,'' so he didn't come to a hearing.
I don't know that there is any way to do that. What I would
suggest is possibly a different answer to your question, which
is one of the things that the President is very interested in,
and that is more diversity on the bench. What we have now are
increasingly people who have worked only in the executive
branch or people who are law professors or appellate court
justices coming only from district courts.
And I think the President has talked about greater
diversity. And that would, among other things, open up the
hearings, as well as diversify the bench.
Mr. Johnson. Anyone else have an opinion on that question?
Ms. Lithwick. I would suggest, at this point, one should
think in terms of damage control more than improving it,
because I think the process is so toxic that it is bad for
everybody. It has become a process that I don't think reflects
well on the people asking the questions. I don't think it
reflects well on the person answering the questions. And I
think that Americans come away from it with a very distorted
sense of what justices do.
And one suggestion is, I think, 4 days of that is just too
much. And three rounds of questioning, when one asks the same
question again and again, is too much, so things like very much
limiting how much testimony there is.
I don't think there is any way to force nominees to say
more than they absolutely have to say to get confirmed. I do
think one thing is to change the conversation entirely. And
whether you do that by having folks who don't come off the
bench, so you are not scrutinizing their cases, the minute you
are in a situation where you are scrutinizing their cases, they
can say, ``Well, I can't speak about something that is about to
come before me. I can't speak about something that I have
already done. And I can't speak about a hypothetical. But I can
talk about the weather.''
And then you get 4 days of that. So I think that, if you
can change the conversation, that would require real ingenuity
and imagination.
But the other thing I think I would say is that the
conversation that happens around confirmation hearings would be
much improved, I think, if we could think through as a country
what it is we want and value in justices in ways that are
less--forgive me, but shallow than the conversation we are
having now.
And so it seems that if we could really talk in very
aspirational ways about what the Court does and why it matters,
what justices do, talking about an approach to the law rather
than fixating on one or two or three cases, or one or two
gotcha moments, I think the whole system would be absolutely
enriched.
And even if you didn't get tremendously illuminating
answers, I think that you would get answers that are at least
interesting and thoughtful, rather than answers that are simply
evasive.
Mr. Johnson. Let me ask this question, because certainly
President Obama set forth criteria that I certainly agree with.
During the Bush years, we heard things like judges who are
strict constructionist and judges who are judicial activist.
Judicial activist judges were to be--they were not held in high
esteem, whereas the strict constructionist, which I would say
is probably evidenced mostly by Scalia and his worthy
companion, you know, they would represent the strict
construction philosophy.
Have we kind of shifted directions--or not shifted
directions, but shifted positions with the new Roberts Court?
Mr. Derfner. I don't know what strict construction is,
because no matter how you construe something, you have got
value judgments. You make choices. And the notion--for example,
if you strictly construe a statute of Congress and you say, ``I
am going to take only the words, and I am going to leave out
the legislative history,'' or what Chief Justice Warren in the
Allen case caused the ``laudable goal,'' well, you are cutting
out half of what Congress told you to pay attention to. If that
is strict construction, I think that is going to get it wrong.
So strict construction is a value judgment like any other.
And it is useless to pretend that you don't make value
judgments when you interpret statutes or the Constitution.
Mr. Nadler. The gentleman's time is expired.
The gentlelady from Texas is recognized.
Ms. Jackson Lee. Mr. Chairman, thank you very much for
holding this hearing.
And let me express my appreciation for the witnesses who
are here and my outright dismay for where we are today.
I respect the three branches of government and respect the
independence of the Supreme Court. That is why we adhere to
that constitutional premise of three branches of government and
pride ourselves in having a working solution.
We have not stormed the Supreme Court to physically remove
any justices because we disagree. We have respected decisions
of which we have agreed and disagreed.
I think one of the most shocking experiences that I have
had in my lifetime, besides a litany of civil rights cases pre-
Warren Court, was, of course, the 2000 decision in Bush v.
Gore, which I felt was a complete aversion to a conservative
court. And now it looks as if this is penetrating our whole
system of government.
So let me just pose these three cases. And if you can--as
many people as we can get to, to quickly comment. And you may
have commented on these already.
The Ricci v. DeStefano case, those of us who support our
good friends in law enforcement and fire departments and
appreciate their service, we do know that, across America,
there are these departments that are monolithic in diversity,
both in terms of women and in terms of race.
The decision to overturn the decision that was led by then-
Judge Sotomayor, if you would comment on where we are in those
kinds of cases and the undermining of the title VII cases. Age
discrimination, Gross v. FBL Financial Services, had the--it
seemingly had the burden of proving that age was the but-for
for the cause of the employment decision.
And then, lastly, equal protection, the school
desegregation case, Community Schools v. Seattle School
District, the Court struck down voluntary school integration
plans. In some of our communities, that includes the issue of
magnet schools and other ways of exchanging students to make
sure that we are diverse.
Let me yield to you and just quickly say, where are we with
that kind of dismantling from age to title VII and to equal
protection? Will we start with the first witness here? I am
sorry.
Mr. Derfner. You have picked out on some very interesting
cases. And I will just say a couple of things.
The Ricci case, it was an unfortunate combination of
situations. But I--one of the things the Ricci case did was
basically to undermine a case called Griggs v. Duke Power
Company, which was written by Chief Justice Burger, back in the
day when Chief Justice Burger was thought of as the most
conservative justice we had had in a long time.
Chief Justice Burger recognized the reality of the time and
set up a standard in which it was a meaningful opportunity to
prove discrimination. And what Ricci winds up with, what Ricci
winds up with is--I am not going to deal with the doctrines,
which are pretty complicated--what Ricci winds up with is that
the fundamental way to choose a firefighter is by a written
paper-and-pencil test.
I guarantee you that all of us here at this table and all
of you up on the panel could pass those tests and could be at
the head of that list. And, God forbid, if New Haven or anybody
else hired us as firefighters. A paper-and-pencil test, which
is what that case sort of----
Ms. Jackson Lee. May I get the others to quickly jump in?
Our time is going. I know the Chairman and I both have to--can
you jump in? And you can pick any case and if you would just
add, do we need a legislative fix? Are we now going to have to
have a process of legislatingly overturning the Supreme Court?
If you could quickly--next witness?
Mr. Francois. I did mention earlier----
Ms. Jackson Lee. Turn your----
Mr. Francois. I did mention earlier that, in fact, we do
need a fix for Gross. With respect to the other two cases that
you mentioned, I would suggest that even though they cover very
different areas, they should be sort of together, Ricci and the
Seattle School District cases, because at the bottom of these
cases lies not with a legislative problem, but rather the view
of equal protection that the Court has adopted that essentially
says the meaning of equal protection is pure race neutrality.
The reason why this is a fundamentally important argument
is because that was precisely the argument that--subsequent to
Brown, that had it been accepted would never have resulted in
desegregation.
So both Ricci and the Seattle School District case are less
susceptible, really, in my view to, let's say, fixes, because
they really are evidence of----
Ms. Jackson Lee. Subject to legislative fixes?
Mr. Francois. Yes----
Ms. Jackson Lee. Let me get the next gentleman before the
light.
Mr. Adegbile. I agree----
Ms. Jackson Lee. All right.
Mr. Adegbile [continuing]. That the idea of equal
protection, as--that measures to address discrimination should
not be equivalent to--made equivalent the idea of
discrimination itself. And it is noteworthy that in the parents
involved case, Louisville had long been under a desegregation
order and decided of its own volition that voluntary
desegregation was the way to go after a long experience of de
jure desegregation.
Mr. Nadler. Thank you. The gentlewoman's time is expired.
We have 1 minute and 30 seconds remaining in a 15-minute
vote, which means about 3 minutes. The Committee will have to
stand in recess. There are five votes on the floor, 4-or 5-
minute votes after this one finishes.
So probably we will reconvene right after the votes,
probably in about half an hour. We will have a second round of
questioning at that time. I thank the witnesses and everyone
else.
And the Committee will now stand in recess.
[Recess.]
Mr. Conyers. [Presiding.] The Committee will come to order.
And I thank the witnesses for their indulgence. The floor
action lasted longer than any of us expected.
Could we continue our conversation? What I would like you
to be able to put on the record, to the extent that you would
like to, is your reactions to each other's comments, I mean,
because all four of you come from perfectly different points of
experience and knowledge and persuasion. And so what I would
like to do is, in the friendliest way that we do things in
Judiciary Committee, have a candid conversation about each
other's points of view.
You don't all have to start at the same time. You don't
have to start with Mr. Derfner first, Ms. Lithwick. As a matter
of fact, you would probably be the best one to start off.
Ms. Lithwick. Then I shall. Thank you very much.
I think that one unifying theme here is that there has been
a tendency to chip away, whether explicitly or implicitly, at
civil rights in the last two terms. And I think it might be
worth at least putting on the record the notion that every year
a case comes down that shocks all of us in the media, we didn't
know Lilly Ledbetter was going to become Lilly Ledbetter until
6 months after there was a blowback, a public blowback. We
didn't know the Kelo case was going to be the Kelo case. We
didn't know that Gross was going to be Gross.
And I think one thing that is useful to say here, at least
in connecting what my colleagues on the panel have said and
what I have said, is that I think the Supreme Court is
exquisitely sensitive to public opinion. I think that it is
exquisitely sensitive to the moments when it is perceived as
making a mistake.
Mr. Conyers. We have never noticed that before.
Ms. Lithwick. Well, I watched oral argument in the Redding
case, in the strip-search case last year. And if you walked out
of that case after oral argument, it was 7-2, I think, for the
school district. And a few things happened. A few people wrote
strongly. There was an enormous public outcry. And I think that
it profoundly shaped the way that the decision ultimately came
down.
So I just think it is important to connect out what we are
saying here on this panel to the question of, how is it that a
case becomes important to the American public? How do we get a
Lilly Ledbetter? How do we get a Gross? And I think that piece
of it is really critical, because I think the Court is more
sensitive than we would expect to doing something that is later
perceived as having really truly wronged a plaintiff.
Mr. Conyers. But you are the one that has raised the
question more specifically than anyone else here today about
the inadequacy of the media, in terms of bringing to the
attention of the general public the importance and significance
of what the Court does.
Ms. Lithwick. I agree. And I am here to say mea culpa, but
I am also here to say I think that these cases surprised the
media, too. I think the media was surprised by the outcry over
Ledbetter. I think the media was surprised by the outcry after
Kelo. And so the question is, why are we following that
conversation and not--it?
Mr. Conyers. Well, I am surprised that you are surprised,
but so what? I mean, what has that got to do with how we make
the Court better and more sensitive to our relationship? And
what about these three male witnesses that came here with you
this morning? You were going to--you were going to tell me what
you agreed with about what they said and any reservations you
might have had.
Ms. Lithwick. What I agree with about what they said?
Mr. Conyers. Yes. And any reservations you might have had
about what they said.
Ms. Lithwick. I agree absolutely with the notion that
Congress is creating records that are fundamentally sound and
for the Court to question the record is ultimately the Court's
problem, I think.
And I agree with--I very much agree with the idea that they
have all put forward, that this is happening in large ways and
in small ways, but it is absolutely happening.
Mr. Conyers. Well, I mean, look, as far as males and
females are concerned, this is an unbalanced panel. This is an
opportunity that is important for you to give some free advice
to your panelists.
Ms. Lithwick. Well, if I was going to give free advice
about gender, which I only do at home to my husband, I would
say that I think that the conversation around gender that we
had over Justice Sotomayor and the need for gender balance on
the Court was one of the most impoverished national
conversations we have ever had. And I thought it happened in
stereotypes and cliches. I thought it was really pernicious and
it played to the worst of the ways we talk about gender.
I think that it is clear that we need gender balance, not
just at the Supreme Court, but in every level of the judiciary.
I am not advising my colleagues here. I think they probably
feel the same way. But I do think that, for the next two rounds
of vacancies of the Court, if we are going to talk about race
and gender as a country, we need to do it in ways that
transcend the just horrible stereotypes that were kicked up
over this confirmation hearing.
Mr. Conyers. Well, unfortunately, it rebuilt the level that
we are actually at.
Ms. Lithwick. Yes and no. My own----
Mr. Conyers. Oh, you think we are really better than that?
Ms. Lithwick. I think that a lot of us are better than
that. I think that in some ways that was a race to the bottom.
I will tell you this, purely anecdotally. I sat through the
Sotomayor confirmation hearings. And what I saw happening in
front of me, the conversation about whether she is a bully
judge, the conversation about whether she is too rude to
lawyers that was so fraught with gender overtones, and then I
would turn behind me and see the line of people trying to get
into the chamber, and it was a line of people of all colors and
all races and all genders. And that was the future. And they
were there because they were so excited to see a Hispanic woman
on the Court.
And it seemed to me that, as a purely aspirational matter,
that visual of the room behind me filled volumes.
Mr. Conyers. Well, Trent Franks, I would have been one of
those excited people at the Court that day myself, except now I
have learned that she is far more conservative on some matters
that I--that I didn't know about when I was busy being excited
about her nomination and confirmation.
Mr. Franks. From your lips to God's ears, Mr. Chairman.
Mr. Conyers. And now I am saying, ``She did? She ruled like
that?'' But, hey, nobody is perfect.
Mr. Adegbile. I guess I will say a word about the
importance of these civil rights decisions and, in particular,
one of the things that concerns me a bit about the Supreme
Court's handling of some of these cases.
The question at the end of the day is, how have we achieved
the progress that we have made? But it doesn't stop there,
because part of the question is, how can we continue on the
path of progress? And that is a very important second question,
and I believe that was the question that this body asked itself
in 2006 when it reauthorized the Voting Rights Act.
It took note of the progress that we had made, and that
progress is undeniable. The chief justice himself, in the
decision in the MUD case, wrote the historic accomplishments of
the VRA are undeniable.
But I think that there is another lesson that history
offers to us. It gives a gift. And the gift that history gives
us is it provides us with the ability not to repeat some of the
most troubling chapters if we study it.
I am not here today to say that the United States is going
to turn back to Jim Crow. But in light of the record that this
body established on the Voting Rights Act, it is clear that we
have not uprooted all of the entrenched discrimination in the
covered jurisdictions.
Mr. Conyers. And we are making it more difficult to move
forward.
Mr. Adegbile. And that, I think, at the end of the day, is
the important question: Why would Congress, in the face of
continuing discrimination, why would we read the Constitution
to require Congress to stand down?
There is nothing in the Constitution that says that
Congress's enforcement powers have an expiration date. If there
are continuing problems, my view is that the Constitution
allows Congress to continue to act to address them. There can
be serious discussions about how Congress approaches its--
discharging its duty, but on the record that Congress assembled
of repetitious violations that were concentrated in particular
parts of the country, with greater frequency and intensity than
other parts of the country, I think that it is a reasonable
judgment and a constitutionally sound one for Congress to stay
the course.
And so the idea that we would over-commit to our progress
without taking note of the challenges that still exist, I
think, is really telling half a story. And that is why I think
it is so important for the Constitution to continue to be a
conversation in which both the Congress and the Supreme Court
and, of course, the executive, everybody has a role to play.
And the thing about the Voting Rights Act is that, for many
generations, the three branches of government have come
together with a unique understanding of how it has charted us
on a path toward progress. And it would be my hope that, in
future cases, the Court would not shrink from that important
commitment.
Mr. Conyers. Mr. Francois?
Mr. Francois. Thank you, Mr. Chairman.
One overarching theme that have run through this proceeding
this morning is the idea of what sort of record Congress places
before the Court and what standard is the Court going to use in
evaluating the adequacy of that record.
I do agree with my colleagues who have commented that
Congress has done a superb job over the years in--and placing a
record before the Court. But the one thing that I also would
bring to your attention for the record is a different point,
but somewhat related.
When one looks at these civil rights cases--South Carolina
v. Katzenbach, for example, with respect to the VRA--going all
the way to, say, Tennessee v. Lane, regarding the ADA, many of
the findings that the Court relied upon and gave a great deal
of credibility to were findings that actually came out of the
United States Civil Rights Commission.
For example, in Tennessee v. Lane, the Court relied almost
exclusively on a 1983 study by the commission having to do with
access for disabled individuals. However, what has occurred
over the last 3 years is that it is virtually impossible for
Congress or the Court to actually go to that agency, which as
obscure as it may be to some actually has a great deal to do
with establishing records with civil rights, because the agency
has essentially stopped functioning.
Now, I will concede that I have a bias, because I actually
served as the lead agency reviewer during the Obama transition
team in looking at the agency and making recommendations for
it. But what is very disconcerting, I think, deserves some
measure of attention from the Committee is that, if the
Committee were to decide, for example, that new civil rights
legislation were needed with respect to women or gays and
lesbians, with respect to sexual orientation discrimination or
gender identity discrimination, it virtually would be
impossible nowadays to go to the commission for such findings,
where essentially for close to--beginning in 1954, this is
precisely the place where you used to go.
And I think, if, in fact, much of the discussion today is
going to be based on the idea that--to borrow my colleague's
analogy, that the Court now requires Congress to do its
homework, but also grades it not on a pass-fail basis, but on
A, B, C, D, and you have to get an A for the Court to uphold
your statute, then it does a disservice to all of us who are
interested in civil rights for us to completely lose that one
part of the government that, in fact, is supposed to be doing
our homework for us, namely the Commission on Civil Rights.
Mr. Conyers. Is EEOC the period you referred to during the
chairmanship of Mary Frances Berry?
Mr. Francois. The civil rights commission--yes, during the
chairmanship of Chairman Mary Frances Berry, in--there were
some problems with the commission, but it still continued to
function. As I said before, Tennessee v. Lane, which was
decided recently, was based on a 1983 report from the
commission.
But it is fair to say, without singling out anyone, that in
the last at least 10 years, if not more, the agency has stopped
producing this sort of report.
Mr. Conyers. Professor Derfner?
Mr. Derfner. This has been an extraordinary hearing. I have
learned a lot myself from my colleagues and from the Committee
Members. I think the important thing that I take away after all
of this is that Congress is still in the business of enforcing
civil rights. And that is important, and it is different from
the last time many years ago that we had a situation like this.
In the 1860's and 1870's, after the 13th, 14th and 15th
amendments were passed, Congress passed a series of civil
rights and enforcement acts. The Supreme Court struck them down
starting in 1876 and then going on increasingly and kept on
doing it.
By the time the Supreme Court started doing that,
Congress's will to come back was gone. And so when the Supreme
Court----
Mr. Conyers. What about the Compromise of 1877?
Mr. Derfner. Exactly. Well, the Supreme Court started
striking laws down even before the Compromise, but you are
right. The Compromise began it, and then Congress didn't pass
any more civil rights laws. Congress did not respond to the
Supreme Court's negative decisions at that time. Then we went
to Jim Crow, disenfranchisement, violence, fraud, lynching, et
cetera, I mean, the sorriest chapter of our history.
We have something very different now, because Congress got
back into the business of passing civil rights laws in 1957,
then 1960, 1964, 1965, and Congress has stayed in that
business. Not only has it seen that the job is not done; it has
recognized that more people need the help.
While race is our Nation's most serious problem--it has
always been--we also need to deal with issues of gender, of
handicap, of age, of sexual orientation, of nationality, a
whole range of things. Congress has stayed in the business. And
as the Supreme Court has turned back over the years from the
days when the Court was in sync with Congress, Congress has
stayed on the job. That, to me, is an incredibly important
thing.
It is the one thing that gives us hope that we will come
through this and we will get back to a time--we will get back
to a time when the Court will be in sync. Because make no
mistake about it: The fact that Congress, the political branch,
stays in the game and stays in the business shows us that that
is where the Nation is. And it is the Supreme Court, frankly
and sadly, that I think is out of step with the Nation. And
that can't go on very long. Congress has shown the
determination. It is exciting that it does so.
And I also look back--let me just say one last thing, and I
will stop--the way I see it, this country has had three new
births of freedom. President Lincoln talked about a new birth
of freedom when he gave the Gettysburg Address. We had a birth
of freedom when we had the Revolution, and then we killed it
with a Constitution that institutionalized and protected
slavery. We had a new birth of freedom in the Civil War and
Emancipation and then Reconstruction, and that was killed by
people who were determined that we would not have equality.
Starting with the early days of the civil rights movement,
Brown v. Board of Education, the work of Thurgood Marshall, the
work of Mr. Houston, and Judge Hasty, the first Federal circuit
judge who was Black. It is really our third try at bringing
freedom and equality to this Nation. And the fact that Congress
has stayed on the job, both parties, year after year, is the
most encouraging and hopeful sign that I have ever seen.
Mr. Conyers. Before I turn this over to my colleague, Trent
Franks of Arizona, Ms. Lithwick, did you have a comment to make
on this?
Ms. Lithwick. I couldn't improve on what Professor Derfner
just said if I tried.
Mr. Conyers. Trent?
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, the main reason I came back was just to give
you the opportunity to put those things on the record you
wanted to, so I don't have any questions.
But I guess I would be remiss if I didn't just express the
fact that I was touched by Mr. Derfner's remarks. And, you
know, sometimes I guess we forget that America was built on a--
kind of a different premise than other nations. You know, other
nations often sought to put individuals or certain people in
charge of things, and we did a new experiment that we would
take away government's power and we would empower the
individual, because we held the truth that all of us were God's
children and deserve to be--have our lives protected, our
freedom protected, and our property, and, you know, the pursuit
of our dreams.
And I know that there is a great deal of differences on
this Committee over how to do that sometimes. And I realize
that it takes society a while to develop certain ideas. And I
am reminded that there was a time when Congress outlawed
petitions--for a period of 8 years, outlawed petitions against
slavery. In other words, we didn't want to even be lobbied on
that issue, because that was a set deal. In other words--we
decided, by God, we are going to have slavery, and that was it,
and we weren't going to listen to any of these wacko
abolitionists.
And I know sometimes I frustrate this Committee by my
constant return to what I believe the civil rights issue of the
day is, and that is the protection of unborn children, because
I believe that, you know, the same court that said Dred Scott
was not a human being said that the unborn was not a human
being. And it took time for us to develop in a different way.
But by the grace of God, we did. And Congress played a big
role in that. Congress was the first body to say that we are
going to have civil rights, finally woke up and said--you know,
the people woke up. And the Courts struck those early ones
down. We forget. You know, they struck those early civil rights
laws down.
Finally, the Court woke up and joined the rest of us and
said, okay, we are wrong. And we finally put aside this tragedy
of slavery. And the issue that I mentioned today--again, I know
that it frustrates people. I don't mean to do it to frustrate.
I am a likable guy. I just don't seem like it sometimes, you
know?
But it is true today that the most basic civil right of all
is the right to live. Without that, the others don't really
have a lot of meaning.
And today, one of the disparate realities is that half of
all Black children--half of all Black children--are killed by
abortion on demand. And I don't know if I am the only one in
this room that that hits me as hard as it does, but I just
think that is one of the most tragic realities that we could
face when we talk about civil rights.
Mr. Conyers. Do you have a reference for that statistic?
Mr. Franks. Sure, Planned Parenthood, Alan Guttmacher
Institute. That is their statistics.
Mr. Conyers. Okay.
Mr. Franks. I hope you check it out. I hope you say,
``Listen''--I hope you come back to this Committee and say,
``You know, that guy is a lunatic. We can prove it.'' I pray
that the Chairman--I challenge the Chairman to--I say that not
to challenge you, but just to--that these are sincere
perspectives.
And I am just hoping that the day comes when Congress and
the people of the United States will finally say, you know
what? No matter whether you are Black or you are White or you
are rich or you are poor or you are unborn or you are--or you
are not or you are weak or strong, no matter who you are, you
are part of the human family, and we are going to get together
and we are going to protect each other in these brief days of
life----
Mr. Conyers [continuing]. Jurisdiction to hold hearings on
this subject matter.
Mr. Franks. Well, I have a bill, Mr. Chairman. It simply is
called the Prenatal Nondiscrimination Act. And it simply says
that you cannot discriminate against an unborn child by
subjecting them to an abortion on the basis of race or sex.
That is what it does.
Mr. Conyers. Well, why don't you get a hearing on it?
Mr. Franks. Would you give me a hearing on it?
Mr. Conyers. Well, I haven't heard of it before just now.
Mr. Franks. Well, I guess I would sincerely if you--if you
are open to giving me a hearing on it, I would love to present
it. And regardless of what the Committee does with it, just
helping it be understood I think would be something that maybe
the generation will have a panel there and they will say, ``You
know what? There was a long time ago when we were taking the
lives of half of all Black children, and we decided that wasn't
the way to go, and we changed it. And, sure, we had
disagreements over it, but we changed it.''
And I would welcome the opportunity for a hearing like
that. Would you be open to that, Mr. Chairman?
Mr. Conyers. Could I see the bill first?
Mr. Franks. Absolutely. I will bring you the bill, Mr.
Chairman.
Mr. Conyers. Well, I can look it up, now that you have told
me about it.
Mr. Franks. Okay. It is the Prenatal Nondiscrimination Act.
We have forwarded it to your office before.
Mr. Conyers. What is the bill number?
Mr. Franks. I think--I apologize. I don't remember the bill
number, but we will get it.
Mr. Conyers. Oh, that is all right. Don't worry about it.
Mr. Franks. But in any case, I just want to thank the panel
here and thank the Chairman. The Chairman is a gentleman. And
forgive me for the--sort of the--I don't know what it was,
the--just the discussion, but I appreciate all of you, because
I believe that one thing we hold in common in this room is that
we really do desire to see the imago dei, the image of God, in
every human being respected and protected. And I just hope we
figure out who we all are.
Thank you, sir.
Mr. Conyers. Thank you very much.
The distinguished gentleman from North Carolina, Mel Watt?
Mr. Watt. Thank you, Mr. Chairman.
I know that I have come in on the end of the hearing, and I
will be brief, because I know that some of the witnesses have a
deadline for being out of here. And as do I.
I was fortunate to be here for the opening statements and
came back for several different reasons and just got one added
to me, so let me add my response to Mr. Franks first.
It seems to me that those who make so much protestation
about the unborn would have a lot more credibility if they paid
half as much attention to those who are out here walking around
and protecting their rights, would add to the credibility that
you have for those that I haven't seen.
I see these people every day being discriminated against.
And I guess I have more immediacy about that. That is not why I
came back, obviously, because I didn't know what Mr. Franks was
going to say.
I came back for actually five other reasons, number one, to
express my tremendous thanks to Mr. Sensenbrenner for the
content of his opening statement and for the tremendous work
that he did to help us reauthorize the Voting Rights Act
extension.
Number two, to thank Mr. Adegbile--I always have to
concentrate on the pronuniciation of his name--for the
tremendous job he did in defending our congressional record
that we developed in the United States Supreme Court, and since
that extension has been under attack, and to encourage him in
the process to keep moving forward on that front.
And to say that my initial reaction when I heard about this
hearing was that I was somewhat reluctant, because I thought we
were going to just beat up on the Court, and having sat through
multiple terms in which the other side was in control of this
Committee and seen that happen, I didn't think that was a very
constructive way to approach this.
But this has turned out to be a very constructive series of
witnesses, and the testimony and the questioning, I think, has
been constructive to the extent that I have heard it.
Two substantive issues, now that I have gotten all of that
out of the way, the protocol stuff. And I apologize if somebody
has already addressed this. I was struck by what Ms. Lithwick
had to say in her testimony. And I am wondering what kinds of
things we might be able to do legislatively to deal with this
whole attack on standing and the prerogatives of the Court
versus--I mean, are there some substantive things that we can
be doing?
We thought we were doing the right things by developing,
what, a 16,000-page record to substantiate the need for the
extension of the Voting Rights Act, because that is what the
Court had told us. They didn't say we required 16,000 pages.
There is a big disparity as some people--as Mr. Sensenbrenner,
I think, said in his opening statement--about what is required
by the Supreme Court.
But we understood the imperative that we had to have
hearings and make a record that this was an extraordinary kind
of statute that required legislative findings and continuing
discrimination. And we did it in methodical, painstaking
hearings and record-building.
And I was with the Chairman and the Ranking Member when
they went to the Senate side and dumped our whole record into
the Senate record so that we could supplement their record. We
did that because we thought the Senate hadn't done enough to
build their own record, and we thought sharing our record with
them would be seen by the Supreme Court as a salutary thing.
And to have ourselves second-guessed--but that obviously is not
enough.
What can we do on the standing thing, Debo, Professors?
What can we do on--because I think, you know, if they won't let
people in the court, and the district courts have started to
just dismiss a bunch of cases before they even--you know, you
almost got to prove your case in your pleadings now, I
understand, before you can even survive a motion to dismiss. Is
there something we can do legislatively to address that?
Mr. Adegbile. The congressman has raised a very important
question about whether the courts remain open for business for
civil rights plaintiffs and others who have legitimate
grievances that traditionally we have been able to resolve
through a deliberative process of litigation, which does not
presume a result, but requires parties to conduct careful
investigation and avail themselves of discovery and then meet
burdens that have been proscribed by statute and, in some
cases, by the Court, to prevail.
There are a number of circumstances, some of which have
been described today, where there are answers that are, in my
view, subject to some legislative response. One of the issues
in play in the recent Iqbal decision, in addition to the
important Bivens point of which my colleague here, Aderson
Francois, spoke, is the question of the pleading standard that
you have alluded to.
For a long time, plaintiffs were allowed to come forward
making allegations, and they were allowed to have an
opportunity to test those allegations through discovery. To
say----
Mr. Watt. I won't have you belabor that. I apologized
upfront, because I hadn't heard the testimony. I will go back
and read the record. Apparently you all have addressed this.
Let me raise my final point with you, Debo. I actually
think that--I mean, the Court in the MUD case sidestepped this
issue and kicked it down the road. Maybe we will get some new
justices, which I think is our ultimate answer here.
But I am as troubled--more troubled--as much troubled by
the earlier case in the voting rights area, because once again,
we had been led to believe that this being a transitional
remedy, the Voting Rights Act, that these kind of transition
districts that didn't require 50 percent minorities to have any
recognition under the Voting Rights Act was an important step,
it seemed to us, toward exactly what the Supreme Court had said
was desirable.
You know, for the Court to go back now and say that we only
protect you if you have got 50 percent-plus 1 minorities seems
to me to be a substantial departure from that whole line of
jurisprudence. Am I misreading this? Help me feel better, if
you can, but don't--I mean, tell me the truth.
Mr. Adegbile. I will try and discharge my oath to tell you
the truth. The case that the congressman is referring to is
Bartlett v. Strickland. It was an interpretation of section 2
of the Voting Rights Act. In that case, the Supreme Court
answered a question that it had dodged in four or five earlier
cases about whether or not a claim could lie or a defense could
be asserted with the creation of a minority opportunity
district when the population was below 50 percent.
The court found that--answered that question in the
negative, that it must be 50 percent or more in order to be
cognizable under section 2 of the Voting Rights Act.
And I think the significance operates in two contexts. One
is the claims that can be brought in--following the next
redistricting cycle, where there are opportunities, because of
crossover voting, for minority groups to combine with White
voters to elect candidates of choice in circumstances where
polarized voting persists.
But the context of the North Carolina case presents the
more significant question, I feel, and that is the circumstance
of what is going to happen in the legislative process of
existing opportunity districts that are below 50 percent, and
may--and now have less protection after this ruling, and may be
diluted in the legislative process. Those voters may be spread
out in ways----
Mr. Watt. Such as the congressional district that I
represent, which I thought the Supreme Court had represented to
me was a desirable kind of district, because I represent
majority Whites, and the percentage of minorities in my
district were designed to make it possible for voters to elect
somebody of choice in a polarized situation that is not as
polarized as some other parts of the state.
But now I have got to have a 50 percent minority district
to get it recognized under the Voting Rights Act? That seems to
me to be so counterproductive to the whole purposes that we
were moving towards.
Mr. Adegbile. The congressman is absolutely right, that
there--that one would think that part of where we are trying to
go with all of these voting remedies is that polarization
levels decline and that we are able to have voters of all races
vote based on the merits of the candidates and not pull the
lever based on a candidate's race, which is part of the problem
and part of the reason why we have voting rights protections.
I would say that there are a cluster of important issues to
think about with the section 2 decision. The first is that, in
section 5 covered jurisdictions, there is additional protection
against both dilution--because the retrogression standard
should protect those jurisdictions. There are many
jurisdictions that are not section 5 covered. Indeed, most of
them are not section 5 covered. So how that plays out is an
open question.
Additionally, I think the thing that the Court was
struggling with is an administrable rule about, once you decide
that 50 percent majority-minority is not the cutoff, what is
the guidance that could be offered to the lower courts about
what is the range in which it is reasonable to bring a claim or
assert a defense, where you have a coalition----
Mr. Watt. Could that be a legislative thing or----
Mr. Adegbile. I think it deserves legislative study.
Mr. Watt. Okay. All right.
Mr. Adegbile. And if Congress can fashion a rule that makes
sense, then I think it should be acted upon. The court has--in
the LULAC case--said that influence districts--and here I
distinguish influence districts from an opportunity districts,
the districts at issue in the Bartlett case--an influence
district is where the minority population is so low that really
they are never going to be able to elect--come close to
electing a candidate of choice. The amount of crossover would
overwhelm the amount of the minority population such that the
majority population would be picking the candidate and the
minority population would just be acting in conformity with the
majority preference.
But in this mid range, where there is a substantial
minority population, I think that there is something to study,
but I think the Court was a little bit uneasy about what the
workable standard would be. And an answer to that question
would need to be formulated prior to any legislative enactment.
Mr. Watt. Mr. Chairman, I will pick his brain privately
about what that legislative response might be. And I won't
burden the rest of the panel or the Members with it or the
staff.
But I appreciate the Chairman having a very constructive
hearing, I think. And I certainly appreciate all of the
witnesses being here. And I apologize for not being able to be
here the entire time. We are dealing with an issue that is near
and dear to the Chairman's heart in the Financial Services
Committee, the whole interchange fee question that the Chairman
tried to deal with in this Committee last term we are now
having hearings about in Financial Services, so I have been
kind of pulled in two directions today.
I yield back.
Mr. Conyers. Thank you.
Professor Derfner, did you want to close down this
conversation?
Mr. Derfner. I guess I would add to what Debo said. I think
there are some legislative things that can be done. There is an
old Supreme--not old--there is a Supreme Court case from back
in the 1960's that says Congress can create standing by
creating rights in the statutes it passes. That has never been
overruled, although maybe it will happen soon.
And I think that, in general, Congress has the opportunity
to do things. It has done a lot of things. The things it has
done has been very--it has done have been very salutary. And I
think Congress should just keep on working the way it has been
working, dedicated itself to the things it has dedicated itself
to, and we will come through.
Mr. Conyers. Customarily, we let the lady panelist get the
last word, gentlemen.
Ms. Lithwick. I would just very much thank the Committee
for all the tireless work it has done in this area and really
second Professor Derfner's comments, which are I think that the
mere fact that Congress is not just in the game, but very, very
much in the game is really, I think, the light at the end of
this tunnel. Thank you so much for hearing us today.
Mr. Conyers. We thank you all for your time. And we are
going to study this record carefully. And if you have any
writings or additional comments you would like to submit,
please do.
Thank you all very much.
[Whereupon, at 12:25 p.m., the Subcommittee was adjourned.]