hearing of the subcommittee on the constitution civil rights and civil liberties i will now come to order to thank everyone for attending i will now begin by recognizing myself for a five minute opening statement today searing examines recent supreme court decisions affecting the civil rights of all americans while the court is constitution has its constitutionally 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 decision of the court to be well considered or clearly erroneous the rule of law demands that we have a vigorous and independent judiciary a chief this principle in a system of checks and balances quote the complete independence of the courts of justice is peculiarly essential in the 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 test tenor of the constitution void without this all the reservations of particular rights or privileges would amount to nothing and quote from the federalist paper is a precursor  for this reason why while i have disagreed with the court and many occasions i've 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 and force me the specific decisions are an assault on the very rule of law and our constitutional system of government and saws that we saw in this congress though unsuccessful thankfully a few years ago so for example while i have watched and dismay as the court struck down the religious freedom restoration act and what i believe to be an incorrect reading of section five of the fourteenth 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 fulfilling its function i know some of my colleagues the question the courts to risk rudin's in areas of abortion and church state relations and the previous generation many in the previous generation thought the brown versus board of education case was wrongly decided whatever one side with whatever side one is on 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 if the app and of and the application of every constitutional provision calling balls and strikes is a job of umpires but the justices of a more complicated task when many of our best minds disagree strongly on the meaning of the grand phrases in the constitution we need more than one pie of the matter how often that are considered metaphors repeated by senators or judicial nominees it is simply false to assume that judges do not interpret what kind of way to interpret it for that matter and that they are not informed in the process of interpretation by their knowledge experience and read judges  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 us of the americans with disability act against the clear intent of congress and we solve that by passing another statute that is an appropriate remedy unconstitutional 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 ruling has gone too far afield the constitution provides a 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 well three branches of government say some really difficult challenges in the years to come understanding those challenges is the first step is fulfilling our constitutional mandate with that i'll yield back and i will now recognize the distinguished ranking member of the subcommittee the gentleman from wisconsin for five minutes i thank you very much mr chairman during his last term the supreme court was asked to strike down the two thousand and six reauthorization of the seminole 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 fourteenth amendment the voting rights act of one thousand nine hundred fifty five was amended or reauthorized nine hundred seventy nine hundred seventy five nine hundred eighty thousand nine hundred two and each time it was amended and reauthorized on a strongly bipartisan basis i am proud to have the leading hand in preserving and strengthening that essential tradition when the act was last pre authorized in two thousand and six at overwhelmingly bipartisan legislation was propelled by the president to the president's desk by the force of thirteen 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 thirty years i have been honored to serve as a member of this body power to remedy discrimination to give just one example in the vat a department of resources versus hips the supreme court relied only on the following sources and holding under the congress under the fourteenth amendment had the power to enact  family and medical leave act a senate report citation to a bureau of labor statistics survey revealing gender disparity is in the private sector provision of parenting leave submissions from two sources at hearing the state of the public sector prettily policies differ a little from private sector policies and evidence that fifteen states provide women up to one year of extended maternity leave while only four stay is provided for similarly extended pa turn  leap and the house report's quotation of a study that the failure to implement uniform standards for printing lee would leave federal employees open discriminatory and possibly in the 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 twelve thousand pages of testimony back in mantri evidence in the pen the seas for over thirty groups sixty groups and individuals including several members of congress there is no right more fundamental in the right to vote and a democracy it is only the rights of all can protect all the other rights that right is so central to our system of gov that is protected by five separate amendments to the constitution including the fourteenth fifteenth nineteenth twenty fourth and twenty sixth amendment through the pre clearance process the voting rights act alone has done a wonderful job in helping clear discriminatory obstacles to voting before they've 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 it's very successful as 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 bruises from occurring even in two thousand and nine we have not overcome discrimination in voting as the house judiciary committee report on the legislation set up under the pre clearance provisions of the voting rights act more section five objections were lodged between nine hundred eighty two and two thousand and four then were interposed between nine five nine hundred eighty two and since one thousand nine hundred two deal j has objected to more than seven hundred voting changes that have been determined to be discriminatory in city of rome versus u s the supreme court made clear that the voting rights act the stench in was plainly constitutional in light of the seventy five year period of pervasive discrimination it was attempting to remedy and that case the court held that statutory remedies were necessary to counter the perpetuation of twenty five ninety five years of pervasive voting discrimination and when one considers the full extent of voting discrimination in america another twenty five years of remedial measures appears plainly appropriate given the ninety five y history of discrimination it is tended to combat thank you mr chairman and i look forward to our discussion here today i thank the gentleman on that recognize for an opening statement the distinguished chairman of the full committee direction that the constitution committee is embarking on reviewing the work of the the courts especially the supreme are performing in accordance to the general set of directions and guidelines that we've established for ourselves to work in i mean that's what a democracy ter for his very moderate approach to what our job is here today we could be blasting the hell out of the court system you know that because they've done some perfectly lousy where over the years not recent not just recently but historically and i'm in the process of putting something together on that  but but that's that wouldn't get us very far what we're trying to do is improve the court not just criticize the court and i join with committee and as a member of the committee for almost a couple decades now and it's very three decades now  senior it is piling up here i mean you're one of the oldest members in the congress as i figure it out of hand i think he means in service not in chronology but but but it's 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's why these witnesses become very important and i want to praise the committee again for the selection the people that are before us because this is what they do they've been analyzing thinking writing speaking about this for quite some time and  we think there's a lot that can be done to improve the relationships between the congress and the courts as as i was talking with  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's 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 this is not a one hearing subject earlier that if there was some body there was some group that was over the supreme court they'd be reversed at least half the time and the response was there is some group that's over the supreme court and it's the congress and that starts in the judiciary committee the appropriations committee can reverse the supreme court the congress can the education committee care they armed services and televisions committees care that's that's this is the peculiar responsibility that this committee has in their relationship to the whole federal court system and so i'm very proud of all the members that serve here to declare recess of the hearing which i will do only if there are votes on the floor will now turn to our panel of witnesses as we ask questions of our witnesses the chair will recognize members in the order of this seniority in the subcommittee alternating between majority minority provided members present with his or her attorney arrives members who are not present in their turn to begin will be recognized after the other members of had the opportunity to ask their questions which areas are of the right to accommodate a members unavoidably late are only able to be with us for a short time now introduce the distinguished panel of witnesses armand director is a distinguished scholar in residence in constitutional law at the charleston school of law he's a nationally renowned civil rights attorney was argued and won five cases before the supreme court of the united states he a i hope i pronounced that right is the director of litigation at the end of a c p legal defense and education fund is a civil rights attorney was argued cases before the federal courts most recently successfully defended the recently  of the voting rights act before the u s supreme court in northwest austin municipal utility district number one versus holder more on that later before taking his current position is director of litigation mister identical i served as the circuit i'm pleased to welcome all of you your written statements in their entirety will be made for the record i would each ask each of you to summarize your testimony in five minutes or less to be say within that time there's a timing light of your table when one minute remains the light will switch from green  yellow and then red when the five minutes are up before we begin it's customary for the committee to swear its witnesses if you please stand and raise your right hands to take the do you swear or affirm under penalty of perjury that the testimony about to give is true or related subcommittee of the house judiciary committee and it's always a great event for me to come here because i know that i'm here to assist in the great work of this subcommittee in doing the work of the nation i my topic today will focus on a specific area that is the supreme court's decision decisions in interpret ing the laws of this congress that deal with civil rights and civil liberties and i will be addressing some of the chair the chairman's and other members concerns about those decisions that 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 forty years ago the first major section five case under the voting rights act allen versus 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 fifteenth amendment and make sure that those guarantees were effective the court referred to that as a lot of well goal the court called the statute a remedial statute which it was obligated to broadly in order to make sure that congress has goals were effective and because of that the court did give a broad interpretation of section five which has led to its use as a protection against voting discrimination since that time section five and the voting rights act and felt that helped to save this nation unfortunately if that same case section five the fourteenth amendment sexual section five thi pursuant to section five the fourteenth amendment and the fifteenth amendment as well unfortunately that case were to come before the supreme court today the odds are that it would be decided a very different way because today 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 or the putting is something i learned  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 listed in my testimony fifteen cases the supreme court has decided that congress has had to correct there are others that i that i haven't listed the five statutes where the civil rights restoration act of one thousand nine hundred seven the civil rights hundred ninety one the voting rights amendments of two thousand and six the eighty a amendments of two thousand and eight 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 the congress has felt compelled to put in the preamble findings and purposes that specifically say supreme court got a role and we meant this the supreme court did not interpret it that way it's it's 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  interpretation to congress meaning and it's not over yet there are cases now that i think congress is considering one case deals with the idea arlington district versus murphy as well as other cases of the 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 w you and that's 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 heap on passing statutes when necessary to correct the case the misinterpretations keep on putting in the preambles those very specific references to what you've 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 thank you and they're recognizing this difference professor francoise for five minutes good morning mr chairman and members of the sub committee thank you for the opportunity to testify before you today the question i respectfully present to address this morning is whether and to what extent united states supreme court on the justice well but has kept our broken faith with the constitutional idea and congressional mandates for respect for civil rights and human equality in preparing for the testimony today and i actually really mean that my supreme court over the last four terms can become being anti civil rights the answer to me is to vote it's both that the court has been let in to civil rights than some of us might fear but also far more hostile to civil rights than many of us willing to imagine by that i mean this over the last four years when interpret statutory text 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 stands toward federalis legislation the few examples that i may cite for example the parents concern versus the other school district case unionizing two thousand and six term in which for the first time for the first time since brown the court adopted a view of equal protection which if taken seriously would seriously hamper most institutions ability to continue toward the goal of for another example in the examples that one can think of including for example the court's view on the on congress's ability to abrogate the state's eleventh amendment immunity according to the court's most recent doctrine the only time congress may do pursuit of an independent constitutional right as opposed to congress on finding as to how to enforce the fourteenth amendment i will not presume to provide the committe less than due deference congressional intent interpreting statute they remain quite a few decisions in the last four terms that could and have been corrected balloted minutes we talked about that better it seems to me it's also worthwhile to call to talk about gross and interpretation of that makes it far more difficult for the begins to recover also talk about a decision that has essentially eliminated ruling it nonetheless seems to me a worthwhile project for this committee to consider investigating the ways in which you may begin to challenge the court to reconsider its cooling on the recent supreme court case involving the constitutionality of section five and essential provision with which this committee is at least as familiar as and why i will touch very briefly on three points first i believe it's 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 is considered judgment in two thousand and six i will elaborate on why second the constitutionality of section five reauthorization and 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 clear understanding of exactly what congress did on that question finally and i think this is very important whatever one's view is the constitutionality of section five and particularly before the ruling in the mud case that opinion needs to be modified by the supreme court's reinterpretation 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 the by congress the lower court considered the sixteen thousand pages ninety witnesses twenty one hearings and ten 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 five 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 sanction 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 non coverage or stiction 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 two cases that happen nationwide section two of course in contrast to section five covers the whole country and so by looking at section two we have some metric about voting discrimination throughout the land what that study found is that fifty percent of the successful section two cases happen in covered jurisdictions fifty seven percent and that's particularly significant because only a quarter of the nation's population lives in those jurisdictions it's made even more significant by the fact that those rulings since  happened even as powerful section five was in place so there were six hundred objections in section five covered jurisdictions which dislodged some of the discrimination that would have been litigated about in the section two context this is very serious evidence and it was evidence that was before this congress finally on the on the bailout question but the specific point here is that the way the supreme court has interpreted the bailout statute that of 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 th case seemingly in contrast to what congress had intended was to allow every single cover jurisdiction to be eligible to apply for bail out what this means is that if jurisdictions in fact feel carefully see what happens with this new interpretation of the bailout statute but by any measure it alleviates some of the constitutional tensions which appear to concern the court thank you thank you and a final witness will hear you mr chairman and members of the committee and thank you for this opportunity to speak to you today i want to be clear that i'm not here is a constitutional scholar or a practitioner like my colleagues i'm just here as a reporter who's been covering the supreme court for ten 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 that those later newsweek i think it's no longer a matter of any real scholarly dispute that the current 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 roache rights for criminal defendants to expansive use of the right to vote that we've talked about today 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're for or against this trend at the supreme court nobody seems to know about it it seems to have utterly escaped our notice as 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 herman of 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 quote dismantled her rulings in a few short years i think as a nation we've just completely missed out on the truth that the change from samuel alito to o'connor really made a difference i'm 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  discussing the roberts or any other court i think it's 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 an active act of congress short circuiting ones and president 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 cottoned on to the very dramatic shifts the high court has happened very very for three very clear reasons and i think the first ha to do with a really intriguing intramural split on the court's conservative wing there's no real debate that the court is more politically conservative than it's been in decades this will i think come some day to be seen as the most fundamental legacy of the bush era a two thousand and eight study by professor richard posner who sits on the seventh circuit court of appeals and william landis at the university of chicago demonstrated empirically that four of the five most conservative justices to sit on the supreme court in one nine hundred thirty seven are sitting there now and justice anthony kennedy the court swing voter tant using his empirical methodology but to me what's interesting is that there's a deep division tween the conservative bloc on the court and it has much less to do with vision than 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 concurrence in the wisconsin right to life case derived his conservative brethren's and willingness to just overturn old precedent as quote judicial restraint there's a second factor that contributes to the fact the steady erosion of civil rights by the court has gone and protected 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 court be it through doctrines of standing or rightness by doing away with special complaints  shifting the burdens 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 establishment clause cases no 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 protection to worker protections to civil rights legislation the congress congress's guarantee that 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's really happened in the last two years of the roberts court because we're so focused on the next brown and the next miranda that cases that don't happen that way because hard to blame i just want to conclude by saying that when the court changes the law should the burden limit test increase the standing requirement it's changing the law as surely as it would be doing if it handed down another brown or another and so for scholars advocate litigators anyone concerned about the erosion of civil rights records there needs to be a redoubled effort to think about why this is happening and think about why the public is missing with the prospect of one possibly two new vacancies supreme court in thank you very much and will begin the questioning by recognizing myself for five minutes of questioning a president knowing your written testimony you say the long standing precedent held there was an implied private right of action in statutes passed to protect  class of citizens even if there's not a specific authorization for private wasn't the court said that rule is applicable here the guarantee of section five might well prove an empty promise unless the private citizen were allowed to seek judicial in force with a provision close quote from an earl decision but this is ancient history today's supreme court has outlawed the imply improper implied private right of action unless congress specifically says in the statute the victims can sue they can the only recourse is to hope that a government official or agency will decide to focus  an individual case and this is symptomatic witness what we said a moment ago by changing its standing and rightness doctrines by shifting the burden of proof by doing away facial challenges by making it harder for people to get into court we've made it very difficult for plaintiffs to a certain protect their constitutional rights could congress change this by passing a general statute that says that in the absence of specific language to the contrary there's always an implied implied private right of action  to protect statutory constitutional rights to be that i think that could be very constructive the court again would get to interpret that and the question is whether to interpret ing a statute passed next year would apply fully what the court what the congress this year said about a broad right of action but i think that would be a very constructive questions about the statute of limitations because a lot of statutes don't specifically have that and the court of public around for a number of years trying to figure out how to do that and then congress about nine hundred ninety i think passed a catchall and said for all federal statutes from here on that don't have a specific statute of limitations it's four years and i think that might be a good model for the kind of private right of a thank you professor francoise you are noted the distinction the empirical distinction 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 the series of life or rule basically five or rulings the court has gone much farther afield one might characterize it i'd be interested in your observation one might characterize it as saying that maybe there are some people in the court who think that where congress can correct and they'd better be a little one question and that you direct this to in the northwest austin municipal utility district case the on the narrow ruling permitting that district to bail out in the coverage of section five the court included language in the opinion that appears to be serious concerns that the continues prostitution viability of section five do you think the supreme court was sending a message to congress you better do something about section five before we declare it unconstitutional they sending us a message what are your concerns about future voting rights cases in light of this at this stage and let me make it a little more complicated starting with the bernie case bernie versus city bernie versus maybe that's starting to certainly in that case and certainly in these cases court be concerned with whether 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 is why she's affect the constitutionality of what we do whether we've considered all the factors or not maybe that should affect our elections and our intelligence but why is our constant is the constitutionality of what we do affected by whether we've done it based on a lot of facts and a lot of study or not so really two questions one this  frequent sending us a message on section five that we had better heed and do something about if we could figure out what to do and to the second question i just asked who has to do that for perhaps i'll start i think it's fair to say that every decision of the supreme court sends some signal when they're 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's also fair to generation namely the on the constitutional question so the court essentially did not reach the constitutional question but spends the first eleven pages of it seventeen page majority talking about the constitutional question we call that dicta in ordinary circumstances question is is that sending us a message exactly you know why was why was there so much focus on the dicta on a question that they were not reaching i think it's fair to say that the constitution in this area under the fourteenth and fifteenth amendment calls for a conversation between congress and the supreme court both bodies have a role but it's 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 bernie decision on this question of congress congress doing its homework and what the record looks like there is a not often quoted line in bernie 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 on saturday that's the that's 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 chairman 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 doing its responsibility that to me does not suggest that congress should cut and run but of course it's up to this body how it proceeds i thank you my time expired although i'd like to pursue this my time's expired i never recognize this english ranking member the committee for five minutes well thank you very much mr chairman i am going to pursue this since as chairman  i put together the hearings in the struct on how to assemble a legislative record to justify the reauthorization in two thousand and six i think it's fair to say that the court did not rule section five unconstitutional but section five is hanging on by a thread now and what we did on a bipartisan basis as we started back looking at the cats and back case which upheld the one thousand nine hundred sixty five voting rights act law where they basically deferred to congress and making a finding that article one section four of the constitution could be five but in terms of the volume it paled in comparison to what was done in two thousand and five in two thousand and six with twelve thousand pages thirteen hearings sixty witnesses lots of isn't any good anymore as the court seems to hint what do we need to do and i guess the corollary to this is that the opponents of the extension only thirty three in the house and none in the senate said well section five singles out some states in the single out others answer that is that's based on the record of discrimination and they also say that section five is unfair to voters especially minority voters and the whole purpose of what was done in two thousand and five and two thousand and six in this very subcommittee was to protect the right of minority voters not only to have their cells registered to vote and to allow themselves access to the polling place to have their counted and to be cast effectively so that they weren't wasted so i guess i'd like to ask the witnesses what do we need to do to fix this because i don't have an answer i'll just i'll just agree with what i think mr adegbile i said i think congress has done its job i think the supreme court 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 eligible so if somebody thinks they ought not to have to be subject to the act they have enough but the professor during one of the complaints that we heard of eligible jurisdictions they didn't want to spend the money to  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 commission 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 the seizure i don't think you have to override that because it really isn't very expensive there 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's been active a number of other jurisdictions have made inquiries it's not very expensive at all if you're really eligible so i think congress frankly ought to sit tight anybody else want to try this one it's a difficult question it's 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 well if you would feel did we give them too much to read indeed that's a fair question all so except i think that it was broken down in various contexts in the briefs and others l b s brief in the case pointed to more than six dozen examples not only of discrimination but of violations in the same place to show that section five is still necessary i think that congress did its job and i think that justice scalia's opinion in the lane where he cautions that the burnie 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 will have to consider well i thank you for your input on that i haven't lost any sleep at night based upon how the court did interpret section five 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 i thank  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 fashion way they earned and it seems to me that if we did not have the selected covered states based on some rationale that they earned it started off and they can get out if they no longer deserve it would put even more jeopardy on section five because it would not be narrowly tailored let me go on to another area on discrimination cases  hundred eighty day discrimination clock starts every time you issue a paycheck as opposed to the absolutely absurd idea that if you can get past two hundred eighty days a group can come in and say we've been discriminated against an employer could say oh yeah we've been doing it for years going back to work we cured that with statute or the other burdens of proof or statutory areas where we might be able to help things with statutory changes i think there are a couple of areas some that have already some decisions have already been issued and others that are potentially coming down the road there are two that i mentioned one involves obviously the one from last involving the chavez's big ball where the court essentially even though it didn't have to based on the procedural posture of the case simply court is whether or not the judge has discretion to grant and put it just meant to an attorney's fees based on the extraordinary work and results the attorney as achieve for his or her client the eleventh circuit said yes but one of the judges what the majority opinion essentially would would map to the supreme court for how to say no and even the most of lawyers which again will have a very big impact on civil rights for gays in this country to many of us want to comment on other things related let me just add a little i agree one hundred percent with the professor first one 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 attorneys fees justice powell wrote an opinion in the early one nine hundred eighty s that specifically said there can be an upward adjustment for exceptional performance and exceptional results so if justice powell and other conservative justices at 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 great significance that the congress might consider that's a case called some devolve some devolves 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 is had a very significant effect in cutting back the ability to for congress would force its laws is recognized well thank you mr chairman thank all of you for being here today mr dick bully i know that your statement focuses on the v r a the authorization but the hearing topic today and indeed the discussion has been significantly more broad than just the voting issues and i want to focus on this disparate impact theory for a moment to come under fire and in recent years as you know and some even think the theory is wrong on principle and even should be discarded  liberal members of the supreme court on policy harms a particular group in other areas such as when to a state administrator driver's license exam is given in english only so i want to throw out some facts american groups have pointed out to me and other members of congress that the federal government subsidization of abortion has disparate impact on the black community and their evidence is essentially as follows an estimated eighty percent of percent of all black unborn children are aborted as compared to twenty percent of white babies and that means that twenty five percent of the black population one in four is missing because they were aborted  and that creates a smaller population and certainly lessens the political power of the voting power of african americans and of course are the they also cite the ill effects of abortion and the disparate impact on black women because it's  now as you know well established in dozens of studies worldwide that abortion is strongly linked to the two extreme pre term birth and subsequent pregnancies after just one elective abortion a woman is two to twelve times more likely to have an extreme pre term birth and her baby is one hundred twenty nine times more likely to have cerebral palsy in a full term baby and of course since the higher bush in rate for black unborn children it also equates to about four to five times the rate of extreme pre term for black women than white women and in every given this information and i know i've said enough about the the the evidence you're getting to the disparate impact  issues the clinics that place themselves in the black community that do these abortions are heavily subsidized by the federal government with taxpayer dollars and then 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 a the federal government continued to increase its its support of these clinics the following year now by by civil rights advocates argue very simply is the disparate impact theory applicable here where we talking not necessarily about the the denial of of a benefit say on hiring or or promotion or job but the infliction of the harm where some some rises to the disproportionate harm of abortion in the black community has even been intentional on some people's part is there a disproportionate or just disparate impact here on the black community and why or why not i of course of 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 seven we see the effects test which is similar in section five 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's been the tradition in those two statutes that i've described how it would work in this particular cont t i don't think that i'm informed to say ok i don't want to ask anything above anyone's paygrade here but well mr chairman i would just suggest that the gentleman's time has expired thank you i would just suggest that that approximately fifty percent of the black community being aborted is a disproportionate disparate impact and i hope that is considered by the committee in the future thank you the gentleman from  how can we make sure that they do not deceive and lie during the confirmation process about their true intentions i think that in the olden days judges word questioned or nominees were in question and would felix frankfurter was nominated he said i'm too busy teaching class so i didn't come to a hearing i don't know that there's any way to 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 that's more diversity on the bench what we have now are increasingly people who've worked only the executive branch or people who are law professors or appellate court judges coming only from district court 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 question i would just at this point one should think in terms of damage control more than improving it because i think the process it is so toxic that it's bad for everybody it's 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 justice is due and one suggestion is i think four days of that is just too much and three rounds of questioning when when asked the same question again and again i too much so things like very much limiting how how how much testimony there is i don't think there's 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're not scrutinizing their cases the minute you're in a situation where you're scrutinizing their cases they can say well i can't speak about something that's about to come before me i can't speak about something that i've already done and i can't speak about a hypothetical but i can talk about the weather and then you get four days so i think that if you can change the conversation and that would require real ingenuity and imagination but the other thing that i think i would say is that the constant 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 justice in ways that are less forgive me but shallow than the conversation we're 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 just justices do talking about an approach to the law rather than fixating on one or two or three cases or one or two moment i think the whole system absolutely  president obama set forth criteria that i certainly agree with you during the bush years we heard things like judges i don't know what strict construction is because no matter how you construe something you you've got value judgments you make choices and the notion for example if you strictly construe a statute of congress and you say i'm to take only the words and i'm going to leave out the legislative history or what the chief judge chief justice warren the allen case called a lot of will go oh well you're cutting out half of what congress told you to pay attention to that it's that strict construction i think that's going to get it wrong so strict construction is a value judgement like any other and it's it's useless to pretend that you don't make value judgments when you interpret statutes or the constitution gentleman's time has expired generally from texas recognize 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 fried ass cells and having a working solution we have not storm the supreme court to physically remove any justices because we disagree we have respected decisions of which we've agreed and disagreed i think one of the most shocking experiences that i have had in my lifetime and beside the  civil rights cases pre war in court was of course the two thousand 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 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 our race the decision to overturn the decision that was led by then justice than judge sort of meyer if you comment on where we are in those kinds of cases and 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 vary says seattle district the court struck down voluntary school we with that kind of dismantling from age two title seven and two equal protection when we start with the first witness here i'm sorry you've picked out on some very interesting cases and i'll just i'll just say a couple of things the richie case is it was an unfortunate comp combination of situations but i one of the things that richie case did was basically to undermine a case called griggs versus duke power company which was written by chief justice berger back in the day when chief justice berger was thought of as the most conservative justice we've had in a long time chief justice burger recognized the reality of the time and set up a standard in which it was there was a meaningful opportunity to prove discrimination what richie winds up with what richie winds up with is i'm not going to deal with the doctrines which are pretty complicated what ritchie winds up with is that the fundamental way to choose a firefighter is by a written paper and pencil test i guarantee you 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 paper and pencil test which is what that case sort of may i get may i get the others to quickly jump in now time is going on now the chairman and i both have to to new 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 legislating lee overturning the supreme court if you could quickly next turn your i didn't 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 thought of together which she and the said a school district case is because at the bottom of these cases lies not to the list of problems but whethe view of equal protection that the court has adopted that essentially says the meaning o of equal protection as that of measures to address discrimination should not be a quibble in two made equivalent to the idea of discrimination itself and it's no worthy that in the parents involved case louisville had long been under desegregation order and decided of its own volition that voluntary desegregation was the way to go after a long experience of days or a he said geishas thank you generally these time expired we have a one minute and thirty seconds remaining in the fifteen minute vote which means about three minutes we will the committee will have to stand in recess there are five votes on the floor for five minutes after this one finishes so  reconvene right after the votes probably in about half an hour we'll have a second round of questions at that time i thank the witnesses and everyone else and the committee will not stand in recess