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Sen. Feingold and Judge Roberts discuss the VRA

Senator Feingold questioned Judge Roberts about the Voting Rights. ( and this are from the AP transcript.)

FEINGOLD: Guess I'll have to move on.

Let's go to voting rights. I want to follow up to Senator Kennedy's questions about the Voting Rights Act and, in particular, about your opposition to amendments to that act in 1982 when you were an adviser to the attorney general in the Reagan administration's Justice Department.

In 1982, Congress voted overwhelmingly to amend Section 2 to reinstate the test for vote delusion that many lower courts had used prior to the City of Mobile case -- one that looked, as we talked about earlier, at the effects of an electoral scheme on the ability of minorities to elect candidates of their choice rather than on the intent behind the scheme.

While you were in the Reagan Justice Department, you seemed to have done almost in your power to thwart that congressional effort. FEINGOLD: Your view was that the intent test should stand. This was the policy position of the Justice Department, which as you've indicated -- and you wholeheartedly supported at the time.

Your memos make that very clear. In one memo, you lamented that the House bill then under consideration would make it much easier to attack a, quote, such widely accepted practices as at-large voting, unquote.

Now those practices, of course, were among the most commonly used systems to prevent the election of any minorities to local government bodies.

We know that the effects test put into place in the 1982 amendments to the Voting Rights Act has been very successful in improving minority representation in Congress and at all levels of government.

Do you believe today that those gains have been good for the country?

ROBERTS: I think the gains under the Voting Rights Act have been very beneficial in promoting the right to vote which is preservative of all other rights.

The issue about how to extend the Voting Rights Act, again, my position was a member of staff in the Justice Department.

The administration position of extending the Voting Rights Act for the longest period in history as is without change was in no sense reflective of any disagreement with the proposition that the Voting Rights Act was extremely valuable in securing not just the right to vote but all other rights...

FEINGOLD: But what I'm trying to get at here, Judge, obviously, is this distinction between effects and intent. Let's follow up on the fact that you said that these gains have been good for the country. Do you believe that these gains we've seen in minority representation would have occurred if your review supporting the intent approach had prevailed in 1982?

ROBERTS: Well, I think some of them would have. I don't know if all of them would have. It's obviously impossible to tell, to go back and determine whether a particular application of a different approach would have had the same results or different results. I think that's very hard to...

FEINGOLD: Do you still believe that the intent test was the more appropriate standard by which to evaluate both dilution claims?

ROBERTS: Senator, my personal view of the Voting Rights Act is not somebody was interested in. You have people who serve on your staff, and their job is to help you implement your views as a senator.

FEINGOLD: I'm not questioning what your view was then...

ROBERTS: I'm just saying...

FEINGOLD: ... I'm asking what you think now, having -- this is pretty settled area; I think you'd agreeing -- having seen all this, having been intimately involved in it, knowing it as well as you do, do you believe that the intent test was still the more appropriate standard by which to evaluate vote dilution claims?

ROBERTS: Senator, I haven't studied the Voting Rights Act to determine whether the intent test or the effects test would have different results in different cases under section two. I'm in no position to make a judgment on that.

FEINGOLD: It would be my sense that you would be a person who would, with your enormous abilities and background, to have some sense about that. Obviously, understand that requiring a voter to prove any additional factor makes it harder for the voter to win the case and that to prove the intent of an entire legislative body can be very difficult, especially when a voting system was put in place many years ago, requiring African Americans, Latino voters, many of whom have had limited financial resources, to find evidence of intent was adding an enormous hurdle for them to overcome.

In the Mobile v. Bolden case itself, which was pursued after the Supreme Court's decision in 1980 and before Congress amended the law in 1982, makes it very clear, I think clear to all of us over the years, how difficult that standard was.

African Americans from Mobile, Alabama, had been unable to elect any candidates to the position of city commissioner for every election cycle for something like seven decades. They challenged the method of electing city commissioners that allowed the same majority to choose all the commissioners all the time in at-large elections, and the evidence was very clear that as a practical mater, although African Americans could register and vote, they couldn't elect anyone.

But to get relief under the Supreme Court standard, which you appear to have supported, they had to go to enormous effort and financial expense to prove discriminatory intent, including hiring a historian who could piece together the motivations of city officials who had designed the electoral system almost 100 years earlier.

In this situation, the administration was not bound by a Supreme Court decision in deciding what position to take on the proposed Voting Rights Act amendment. So why at that point did you want to make section two cases so difficult to prove? ROBERTS: Senator, you keep referring to what I supported and what I wanted to do. I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships.

I was not shaping administration policy. The administration policy was shaped by the attorney general, on whose staff I served. It was the policy of President Reagan. It was to extend the Voting Rights Act without change for the longest period in history at that point. And it was my job to promote the attorney general's view and the president's view on that issue. And that's what I was doing.

FEINGOLD: I recognize that. What I'm trying to figure out is, given the fact that you've followed this issue for such a long time, I would think you would have a view at this point about whether you were right about -- or the department, let's say, since you were working for them -- whether the department was right on seeking to keep the intent test or whether time has shown that the effects test is really the more appropriate test.

ROBERTS: Well, Senator, I haven't followed the issue of the particular litigation. I had involvement in some litigation when I was in the Solicitor General's Office in which we were effective in proving violations under the Voting Rights Act.

Many of those cases arose under issues under Section 5 -- pre- clearance issues -- and not under Section 2. I, as a judge, had a case -- a three-judge district court case -- again arising under the pre-clearance provisions. But I'm certainly not an expert in the area and haven't followed and have no way of evaluating the relative effectiveness of the law as amended or the law as it was prior to 1982.

FEINGOLD: Well, with all respect, and I realize I should move on to another topic, but it just seems how strongly you stated some of these memos -- and I understand you were doing your job -- I would think you'd have a view today whether or not those strong statements still make sense.