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Anne Marie Tallman
President and General Counsel
Mexican American Legal Defense and Education Fund
September 15, 2005
Written Testimony of Ann Marie Tallman,
President and General Counsel of MALDEF,
Regarding the Nomination of John G. Roberts, Jr.
as Chief Justice of the United States of America
September 15, 2005
Mr. Chairman and Members of the Committee, thank you for the invitation to testify regarding the nomination of John G. Roberts, Jr. to the post of Chief Justice of the
United States. I am Ann Marie Tallman, President and General Counsel of MALDEF, the Mexican American Legal Defense and Educational Fund.
MALDEF was established in 1968 to advance the civil rights of Latinos. For the past 37 years, as the Latino community has grown to over 40 million people and become the largest ethnic minority group in America, MALDEF has provided legal advocacy on matters such as education, voting rights, immigrant rights, access to justice and fair
employment - critical areas in which success leads to Latinos achieving our American dreams.
The Supreme Court's fundamental role within our federal constitutional framework is to protect the constitutional rights of all, including minority groups, against
any unconstitutional majoritarian tendencies of the elected legislative and executive branches. After a thorough review of John Roberts's available record, we are not fully assured that he properly respects this crucial function of the Court. Judge Roberts's legal
opinions in the areas of MALDEF's core mission often place him in opposition not only to equal justice for Latinos, but opposed to positions taken by bipartisan majorities in
Congress and the Reagan Administration that he served. His legal record also raises serious questions about Roberts's willingness to subordinate the protection of fundamental civil rights to the maxim of "judicial restraint."
For example, as Special Assistant to the Attorney General, John Roberts criticized
the 1982 U.S. Supreme Court decision in Plyler v. Doe. In Plyler, the U.S. Supreme
Court, following two lower courts, struck down a Texas law that effectively barred
undocumented children from the state's public school classrooms. Roberts criticized the
U.S. Solicitor General's office for not standing up for what he described as "judicial
restraint" and supporting the State of Texas's arguments on the Equal Protection Clause,
which, he wrote, "could well have . . . altered the outcome of the case." The nominee, it
is apparent from this memorandum, would not have used the constitutional authority of
the Supreme Court to vindicate the constitutional rights of these immigrant children.
As Associate White House Counsel, Roberts wrote of his support for national
identification cards and derided as "clinging to symbolism" civil liberty and privacy
concerns surrounding them. In disagreeing with the Reagan Administration's opposition
to a national identifier, he failed to recognize the potential for harmful discrimination in
the pretextual singling out of Latinos and African Americans that would likely occur if
such a system were in place. Again, Roberts failed to respect the constitutional interests
of the minority whom the Court is designed to protect.
Regarding equal access to education, John Roberts wrote in support of curtailing the
federal government's ability to investigate and eradicate discrimination by gender and
disability in education programs that receive federal funds. Mr. Chairman, you and many
members of this Committee led the way to overturning that interpretation in 1988.
Further, the nominee was an architect of the Administration's unsuccessful proposals to
strip federal courts of their jurisdiction to establish remedies to end unlawful school
Regarding voting rights, Roberts mischaracterized the bipartisan efforts of the
Chairman and other members of this Committee to restore the "effects test" in voting
discrimination cases. He was wrong when he wrote in 1981 that your efforts "would
establish essentially a quota system for electoral politics."
John Roberts is out of step with the American public on many issues of
fundamental concern to Latinos and all Americans. If just a few of Judge Roberts's
written legal views had been adopted and became settled federal law, 1) thousands of
undocumented immigrant children may have been barred from American public schools
through no fault of their own, left largely illiterate and without hope as members of a
permanent American underclass; 2) a national system of identification cards might be in
place, representing an unprecedented intrusion into Americans' privacy and placing
minorities at a greater risk of racial profiling; and, 3) electoral empowerment of Latinos,
African Americans, Asian Americans and Native Americans and election of a record
number of minority elected officials that are currently serving the American people at the
federal, state, and local level would likely not have been achieved.
This confirmation process is about more than a career record of opposition to
important core principles of equality. The next Chief Justice will lead the Court in
decisions that will have a lasting impact upon Latino and all American families well into
the middle part of this century. We need men and women on the Court who will
understand the changing nation. Strikingly, on official White House Counsel and Justice
Department memoranda that we have reviewed, Judge Roberts displayed a disturbing
pattern of dismissive, derisive, and flippant comments that demonstrate a possible lack of
respect for Latinos, women, and Native Americans.
John G. Roberts, Jr. has consistently advanced extreme positions and displayed
insensitive attitudes that compel us to oppose his confirmation to be Chief Justice of the
United States of America.
Specific findings from MALDEF's research into the legal record of John G.
Roberts, Jr. follow.
I. Roberts's Reagan-Era Record
A. Immigrants' Rights
1. Plyler v. Doe
The Supreme Court's 1982 ruling in Plyler v. Doe affirmed the constitutional
right of undocumented immigrant children to participate in K-12 public education
programs on an equal basis with other children. In striking down a Texas law that
effectively prevented undocumented children from attending the state's public schools,
the Plyler Court held that the Fourteenth Amendment and its guarantee of "equal
protection of the laws" apply to undocumented immigrants. The Court then ruled that
Texas had no substantial interest in preventing these children from becoming educated,
productive members of society. MALDEF represented the schoolchildren in Plyler.
The Plyler Court recognized that upholding the Texas statute would, in effect,
sanction the creation of a permanent underclass of American residents who are
"encouraged by some to remain here as a source of cheap labor, but nevertheless denied
benefits that our society makes available to citizens and lawful residents." The Court
noted with concern that "[t]he existence of such an underclass presents most difficult
problems for a Nation that prides itself on adherence to principles of equality under law."
Further, the Court noted that the children at issue in Plyler bore no responsibility for their
immigration status and that to punish them for a condition that is beyond their control
offends fundamental American conceptions of justice.
A memorandum co-authored by John Roberts on the day of the Plyler decision
raises serious questions about his views on the equal protection principle established in
Plyler v. Doe and the fundamental conception of justice that it reflects. This
memorandum expresses regret over the fact that the Solicitor General's Office failed to
submit a brief "supporting the State of Texas - and the values of judicial restraint - [that]
could well have . . . altered the outcome of the case."
The Plyler decision has permitted undocumented children to have a considerable
positive impact upon American society. The effect of the landmark ruling in Plyler has
been to allow undocumented children to earn an education at their local primary and
secondary schools, participate more fully in their communities, and contribute more to
American society and the national economy than they would have if the discriminatory
Texas statute had been upheld. Roberts's evident disappointment at the government's
failure to change the outcome in Plyler is therefore deeply concerning.
2. National Identification Cards
As Associate White House Counsel, Roberts took the opportunity of a routine
Justice Department clearance of INS testimony before a Congressional committee to
offer his personal views on immigration. In an October 21, 1983 memorandum, Roberts
I recognize that our office is on record in opposition to a secure national
identifier, and I will be ever alert to defend that position. I should point
out, however, that I personally do not agree with it. I yield to no one in
the area of commitment to individual liberty against the spectre of
overreaching central authority, but view such concerns as largely symbolic
so far as a national I.D. card is concerned. We already have, for all intents
and purposes, a national identifier - the social security number - and
making it in form what it has become in fact will not suddenly mean
Constitutional protections would evaporate and you could be arbitrarily
stopped on the street and asked to produce it. And I think we can ill afford
to cling to symbolism in the face of the real threat to our social fabric
posed by uncontrolled immigration.
The ease with which Roberts dismisses civil liberty and privacy concerns surrounding
national identification cards and his failure to credit the valid concerns of Latinos and
others regarding discriminatory law enforcement stops is as disturbing as his
characterization of "uncontrolled" immigration as a "real threat to our social fabric."
Further, while Roberts is often portrayed as supporting a limited role for the federal
government, here he endorses an unprecedented intrusion by the federal government in
the private sphere of Americans.
3. "Illegal amigos"
In a September 30, 1983 memorandum that offers an apparent attempt at ethnic
humor, the nominee recommends that written remarks for publication in the periodical
"Spanish Today" refer to a legalization program in the pending immigration legislation.
Roberts wrote, "I think this audience would be pleased that we are trying to grant legal
status to their illegal amigos" (emphasis in original). The nominee's willingness to
ascribe a single perspective to all Latinos fails to capture the reality that the Latino
community is as rich and varied as any other American community. Further, that Roberts
would draft, initial, and circulate within the Justice Department a memorandum
containing an apparent ethnic joke about Hispanics is greatly troubling.
B. Minority Voting Rights
Judge Roberts's record from his service under President Reagan reveals his
involvement in Reagan's efforts to prevent Congress from restoring the Voting Rights
Act (VRA) following the Supreme Court ruling in City of Mobile v. Bolden. In City of
Mobile, a divided Court held that minority voters must prove racially "discriminatory
intent" when litigating cases under Section 2 of the VRA. (Previously, it was sufficient
to show "discriminatory effects" to make a claim under Section 2.) Two years later,
Congress, by overwhelming majorities in both the House and the Senate, legislatively
overturned City of Mobile's discriminatory intent requirement and amended Section 2 to
make clear that the provision extends to discrimination both in intent and effect. It did so
over the prolonged and vociferous objections of the Reagan Administration.
E. Judge Roberts's Support for Limiting Federal Judicial Authority to
Remedy Violations of Federal Civil Rights Statutes
In debates over school desegregation and the separation of federal powers under
the Constitution, Roberts, as both Special Assistant to Attorney General French and as
Associate White House Counsel, advanced ideological positions more extreme than those
held by many of his colleagues in the Reagan Administration. Notably, Roberts was a
vigorous proponent of legislative proposals to strip lower federal courts of the power to
order busing as a remedy, thereby reducing the role of the courts in remedying unlawful
discrimination. These memoranda can fairly be described as advocacy pieces in support
of his view that busing is not a required remedy for school desegregation. More broadly,
these memoranda may be viewed as advocating a reduced role for the federal courts in
remedying federal civil rights violations.
Among Roberts's writings on this issue is a February 15, 1984 memorandum in
which he describes an "extended internal debate" that took place in the Justice
Department over the separation of powers in fashioning remedies for unlawful
segregation in the schools. Roberts noted that Ted Olson "reads the early [Supreme
Court] busing decisions as holding that busing may in some circumstances be
constitutionally required, and accordingly concludes that Congress may not flatly prohibit
busing. To do so would prevent federal courts from remedying a constitutional
violation." Roberts, however, notes that he advocated the position that "it is within
Congress's authority to determine that busing is counterproductive and to prohibit the
federal courts from ordering it." If Congress is empowered to strip the Supreme Court of
the power to devise remedies for constitutional violations, as Roberts believed, both the
independence of the judiciary and the power of federal courts to remedy civil rights
violations may be severely threatened.
II. Judge Roberts's Record as Deputy Solicitor General in the George H.W.
The White House has announced that it intends to withhold records from
Roberts's tenure as principal deputy Solicitor General in the first Bush Administration.
Many Senate Judiciary Committee members immediately denounced this move and made
specific requests for documents related to 16 cases upon which Roberts worked; these
cases involved affirmative action, redistricting, equal opportunity in education, the First
Amendment, school prayer, and voting rights. The White House continues to refuse to
disclose the requested information, arguing that internal deliberations require an
assurance of confidentiality in order to be effective. The administration's argument that
confidentiality is necessary to allow attorneys to express freely their own legal views runs
counter to the Administration's argument that Roberts's memos and filings do not
necessarily express his own views but are those of his client alone.
Public reports and publicly-filed briefs indicate that Roberts participated in the
following key cases, among others:
A. Commerce Clause
In Rancho Viejo, LLC v. Norton, a real estate developer filed suit in federal court
alleging that application of the Endangered Species Act of 1973 ("ESA") to protect the
arroyo toad, an endangered species, exceeded Congress's powers under the Commerce
Clause. The district court granted summary judgment in favor of the defendants, finding
that Congress has the constitutional authority under the Commerce Clause to regulate
private lands in order to protect the toad. The district court relied on the "takings"
provision of the ESA to conclude that "taking" of the arroyo toad in order to build homes
was an economic activity that substantially affected interstate commerce.
The developer appealed the decision and petitioned for rehearing by a panel of
judges of the Court of Appeals for the D.C. Circuit Court. This petition was denied, but
Judge Roberts dissented from the denial of rehearing and wrote that the district court had
inappropriately focused upon whether the challenged regulation (the building of homes)
substantially affected interstate commerce, rather than whether the activity being
regulated (the arroyo toad) did so. Roberts would have granted a rehearing order to
"consider alternative grounds [other than the Commerce Clause] for sustaining
application of the Act that may be more consistent with Supreme Court precedent."
The Commerce Clause is a critically important instrument for Congress to enact
legislation protective of individual rights and freedoms. Judge Roberts's opinion in
Rancho Viejo suggests a willingness to contract the scope of Congress' power under the
Commerce Clause. Although it is possible that the final line of Roberts's dissent, urging
consideration of "alternative grounds for sustaining application" of the ESA, may
mitigate the balance of his dissent, the opinion is sufficient to raise serious concerns that
the nominee may seek to promote a jurisprudence in which the Commerce Clause's role
in enabling protective civil rights and environmental protection legislation is severely cut
narrowed from its current state.
B. Individual Rights/Access to the Courts
Judge Roberts's opinion in Taucher v. Brown-Hruska raises serious concerns
regarding his philosophy on access to the courts. In Taucher, the Court of Appeals
reversed and vacated an award for attorneys' fees that was granted under the Equal
Access to Justice Act (EAJA). EAJA is a critical tool for public interest attorneys who
work to enforce and vindicate civil rights, and opens the courthouse doors for plaintiffs
who might not otherwise be able to raise and litigate their claims.
EAJA allows for an award of attorneys' fees in cases where a plaintiff is a
prevailing party against the U.S. government, unless the government's legal position is
"substantially justified." Judge Roberts, writing for the majority in Taucher, vacated the
award for attorneys' fees by finding that the Commission's defense was a reasonable one
on the merits. The Commission, Roberts wrote, did not "act in defiance of a string of
losses" or in conflict with an "unbroken line of authority."
Judge Harry T. Edwards issued a strong dissent from Roberts's majority opinion.
Judge Edwards noted that a federal appellate court is bound to engage in a strictly limited
review under an abuse-of-discretion standard. Further, he wrote that the "Government's
positions bordered on frivolous" and that it was "absolutely clear on the record at hand"
that the district court did not abuse its discretion in awarding attorneys' fees.
In Acree v. Republic of Iraq, American soldiers who were held as prisoners of war
by the Iraqi government while serving in the 1991 Gulf War brought suit in district court
under the terrorism exception to the Foreign Sovereign Immunities Act (FSIA). Plaintiffs
sued defendants, including the Republic of Iraq and Saddam Hussein, for compensatory
and punitive damages for the torture suffered during their captivity. The district court
entered a default judgment for plaintiffs and awarded over $959 million in damages.
Following judgment for plaintiffs, the United States filed a motion to intervene,
contesting the district court's subject matter jurisdiction. The district court denied the
motion as untimely.
The appellate panel held that the district court abused its discretion in denying the
United States's motion to intervene. Although the Court of Appeals rejected the
government's argument that the FSIA was inapplicable to Iraq, it nonetheless vacated the
district court's judgment for the soldiers and dismissed the lawsuit for failure to state a
cause of action.
Judge Roberts concurred with the majority's judgment, but on a different basis.
Judge Roberts agreed with the United States's argument that the FSIA is inapplicable to
Iraq, and held that the Presidential Determination of May 7, 2003 stripped federal courts
of jurisdiction in the case. Thus, Judge Roberts would have dismissed the case for want
Judge Roberts, in his Acree analysis, acknowledged that the jurisdictional
question was a close one, and conceded that the majority had case law on its side. Yet he
opted in his opinion to accept, unlike the majority, the interpretation that was more
restrictive of a plaintiff's right to sue. Again, the ruling raises questions about whether
Judge Roberts has shown an appropriate commitment to protecting litigants' right of
access to the courts under applicable statutory and constitutional provisions.
Judge Roberts again blocked a civil rights litigant's access to the courts in
International Action Center v. United States, invoking the doctrine of qualified immunity,
which is often used to bar actions against government wrongdoers. In this case, Judge
Roberts, writing for the majority, reversed and remanded the district court's decision that
denied summary judgment for police supervisors based on qualified immunity grounds
for the inaction theory of liability. Plaintiffs, in a §1983 action, claimed the supervisors
were personally liable for constitutional torts because they failed to properly train and
supervise subordinate officers, which led to tortious conduct. The supervisors sought
interlocutory review of the district court's denial of qualified immunity as it pertained to
this theory of liability. The Court of Appeals held that, absent an allegation that the
supervisors had actual or constructive knowledge of past transgressions or were aware of
"clearly deficient" training, the supervisors did not violate any constitutional right
C. Criminal Justice/Prisoners' Rights
In Hamdan v. Rumsfeld, Judge Roberts joined in a recent D.C. Circuit decision
that granted the Bush Administration extraordinary power to try suspected terrorists in
special military tribunals without basic due process protections, denied these detainees
the ability to enforce the provisions of the Geneva Convention in federal court, and
undermined bedrock principles of international human rights law. In permitting the
military tribunals to go forward, the majority gave an expansive reading to Congress's
resolution authorizing the President to respond to the September 11 attacks.
The Hamdan decision is troubling both in its erosion of fundamental due process
rights and in the tremendous deference and expansive wartime authority that the court
bestows upon the executive branch of the federal government. Given that Latino
immigrants and other members of the Latino community have become caught in the wide
net cast by the "War on Terror," the Hamdan decision raises serious questions about how
far Roberts would be willing to take that deference to executive power if his is confirmed
as Chief Justice.
Roberts's participation in the Hamdan decision also raises the ethical question of
whether he should have recused himself from the case because the Bush Administration
was the party-defendant and, The Washington Post has reported, White House aides were
interviewing Roberts about his possible nomination to the Court during the same time
that he sat on the panel for Hamdan. Under applicable law governing judicial ethics, a
"judge must recuse himself or herself in any case in which the judge's 'impartiality might
reasonably be questioned.'"
A thorough review and analysis of Judge Roberts's available legal record, as
described in part above, has led MALDEF to oppose his confirmation to the post of Chief
Justice of the United States. We are not convinced that Judge Roberts properly respects
the crucial constitutional function of the Supreme Court in protecting the civil rights of
the minority. Further, Judge Roberts has advanced legal opinions in areas of MALDEF's
core mission that place him in opposition not only to equal justice for Latinos, but outside
of the American mainstream.
We urge Senate Judiciary Committee Members and the full Senate to vote in
opposition to the nomination of John G. Roberts, Jr. as Chief Justice of the United States.
Ann Marie Tallman, MALDEF President and General Counsel
Ann Marie Tallman is a native of Iowa, as are her parents. Her Mexican-
American mother is the child of migrant farm workers, and her father is of German
descent. Ms. Tallman graduated with honors from the University of Iowa and received
her law degree from U.C. Berkeley's Boalt Hall School of Law.
Ms. Tallman began her legal career with the Denver law firm of Kutak Rock,
where she specialized in public finance law. In 1993, she was appointed by Mayor
Wellington Webb to the post of Deputy Director of the Planning and Community
Development Agency of the City and County of Denver. In this capacity, she advised
Mayor Wellington Webb on housing and community development matters. Between
1994 and 2004, Tallman served as an executive with the mortgage lender Fannie Mae.
Ms. Tallman began working with MALDEF as a law student at U.C. Berkeley,
where she enlisted MALDEF's support in ensuring equal public funding for a student-
edited law journal on legal issues affecting the Hispanic community. Upon receiving her
law degree, Ms. Tallman collaborated with MALDEF during her tenure as Executive
Director of the Colorado Hispanic League, where she spearheaded statewide Hispanic
census outreach and was actively involved in MALDEF's reapportionment and political
redistricting efforts. Ms. Tallman also recruited a team of private attorneys to support
MALDEF's voting rights litigation strategies in Colorado.
Ms. Tallman was appointed to MALDEF's Board of Directors in 1998 and named
President and General Counsel of MALDEF in 2004. Founded in 1968, MALDEF
advances the civil rights of Latinos through advocacy, legal action, community education,
and leadership development. MALDEF focuses on the program areas of education,
employment, immigrants' rights, political access, public resource equity, and access to
MEDIA CONTACT: J.C. Flores, MALDEF (213) 629-2512, ext.124