[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

                              ----------                              

                            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.]

                                 
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