I was just listening to Senator Kennedy’s questioning of Judge Roberts about his views on, among other things, the Voting Rights Act. (I was listening in my car, without taking notes, so what follows is from memory.) It is clear that Senator Kennedy has more questions to ask about Judge Roberts’ views of the VRA, and I suspect these questions will come up when Sen. Kennedy gets an additional chance to ask questions.
But here is what I would say are my initial impressions about what Judge Roberts had to say.
1. Judge Roberts agreed that for the most part the constitutionality of the 1965 Voting Rights Act was settled law (though he left open the possibility that there could be certain as applied constitutional challenges to certain aspects of that law, and he would not express an opinion on these points).
2. Although he did not discuss the point in any detail, he refused to express an opinion on whether a renewed section 5 of the VRA would be constitutional. He noted that a congressional debate is beginning, and further noted that there are disputes about the constitutionality of the law. It is very clear that he won’t directly address the question of congressional power to pass a renewed section 5, but further questions to Judge Roberts on cases like Tennesee v. Lane could shed light on the subject.
3. Senator Kennedy confronted Judge Roberts with the 1982 memos he had written on the Voting Rights Act. Kennedy read what I considered to be the most controversial of the quotations from the letters (all of which I have written about before in my LA Times oped and on this blog). I would say that Judge Roberts offered three defenses:
a. He was expressing the views of the administration he was working for (with the intimation being that these were not necessarily his personal views)
b. The position that the administration was taking was a defensible one, one that was debated 23 years ago. It was a position that saw a more minimal role for Congress beyond dealing with past discrimination (through section 5) and preserving the right to vote itself (i.e., as opposed to increasing the power of political minorities to elect representatives of their choice)
c. In retrospect, section 2 has proven to be a valuable tool for litigants
Together these three statements do not tell us what Judge Roberts thought of section 2 personally as a matter of policy. And I think it was deliberate that Judge Roberts did not express his opinion in this regard. I would hope to see Senator Kennedy or another Senator ask the question (without a 5-minute convoluted introduction to the question): “Did you think in 1982, and do you think now, that section 2 of the VRA as amended in 1982 was good public policy?”