Roberts Has Troubling Record On Non-Citizens

by Rene P. Ciria-Cruz

(PNS) -- Immigrant and civil rights activists have managed to get several key questions into the confirmation hearings of Supreme Court nominee Judge John Roberts. The questions spotlight their growing concerns about the vulnerabilities of immigrants and ethnic minorities.

Ted Wang, a public policy consultant for nonprofit groups and foundations, is concerned about a memorandum the nominee wrote criticizing the U.S. attorney general for not actively supporting a Texas law that allowed elementary schools to bar undocumented children. "I want to know why doesn't he see immigrants as part of the U.S. community," Wang says.

Immigrant rights groups had sued the state (Plyler v. Doe), and the Supreme Court in 1982 struck down the Texas law in a 5-4 decision, at which point Roberts wrote the critical memo.

Senators Dick Durbin (D-Illinois) and Dianne Feinstein (D-California) raised the same question about the memo, but Roberts was evasive. He told Durbin that the memo was merely a reminder that the Justice Department's hands-off position was inconsistent with the attorney general's "litigation policy approach."

Durbin pressed on, saying millions of Hispanic children have benefited from access to education, a policy Roberts "apparently disagreed with 23 years ago."

Later, Feinstein also asked Roberts if he believed education should be made available for all regardless of immigration status. The nominee remained noncommittal, repeating that he was merely pursuing a legal issue, not a policy issue, as a staff lawyer.

For Maria Blanco, executive director of the Lawyers' Committee for Civil Rights, the key question is about the independence of the court as a check on executive power and potential abuse of that power.

"Does he believe that the U.S. Constitution guarantees the right of all persons not to be detained without charges brought against them?" Blanco asks.

Blanco is referring to a recent 4th Circuit Court of Appeals decision upholding that suspected Al Qaeda member Jose Padilla, a U.S. citizen designated by the White House as an "enemy combatant," can be indefinitely detained without charges.

The Padilla case is expected to go to the Supreme Court, so Roberts will not go into its specifics. Sen. Russ Feingold (D-Wisconsin), however, asked if he had any concerns about the United States secretly sending suspects to foreign countries where they could be tortured, or "the federal government using immigration laws to round up and detain people for months often without regard for whether they had any connection to the September 11th investigation?"

Roberts declined to comment, saying a number of related cases were expected to be brought to court. He did agree with Feingold that the decision to incarcerate Japanese Americans during World War II was one of the Supreme Court's worst rulings in history.

Trial attorney James Brosnahan, who defended John Walker Lindh against charges of fighting for Al Qaeda in Afghanistan, would like ask Roberts about "an ethical matter."

Brosnahan wants to know why, when Judge Roberts was presiding over a terrorism case being pursued by the Bush administration (Hamdan v. Rumsfeld), he met with the White House and Attorney General Alberto R. Gonzales for an interview as a prospective Supreme Court nominee.

"Why didn't he recuse himself, or at least step aside until the case was decided before meeting" with representatives of one side of the case, Brosnahan would like to know. Other legal experts said Roberts should have avoided the appearance of conflict or impropriety by not meeting with the administration while the case was being tried.

Roberts' three-judge panel ruled unanimously in favor of the administration, allowing the use of military commissions to try terrorist suspects held at the U.S. Guantanamo base in Cuba.

Feingold grilled him on the same question on the second day of the hearings. Feingold told the nominee that a constituent came up to him saying Roberts' role in upholding the government's ability to try a Guantanamo Bay detainee by military commission "should disqualify you from being on the Supreme Court."

Roberts declined to comment, saying, "The case itself is still pending, I don't think it's appropriate for me to address that."

The next day, however, Roberts said the decision in favor of the administration was drafted before a vacancy occurred in the Supreme Court and was finished before he was interviewed by Bush for the nomination.