DURBIN: Many of the organizations that oppose your nomination represent minorities in America. You have the distinction of being opposed by LULAC. This, of course, is the first time this Hispanic organization has ever opposed a Supreme Court nominee.
You're also opposed by MALDF. I personally think that their feelings go beyond the comment, illegal amigos, that you talked about yesterday.
And I want to point you to one particular area that they find troubling when I speak to them and I find troubling, and it goes back to the case of Plyler v. Doe: 1982, Supreme Court case held it unconstitutional to deny elementary education to children on the basis of their immigration status. It was a Texas case.
The court struck down the Texas law and allowed elementary schools 23 years ago to refuse entrance to undocumented children, struck down the law that allowed the schools to refuse entrance.
On the day the case was decided -- and I think the timing is important here, because it appears to be kind of a gratuitous comment; it isn't as if you were asked for an opinion.
On the day it was decided, you co-authored a memo that criticizes solicitor's general's office for failing to file a brief supporting the Texas law, which would have refused education to these children.
Your memo disagreed with the administration's position on the case, so it isn't as if you were arguing the Reagan administration's position. They had taken a different position on the case.
Can you describe your involvement in the case, and I guess more importantly, can you describe now how you feel about this today 23 years later -- I'll just finish and I'll leave you the time you need to answer -- when the largest, fastest growing segment of America's population is Hispanic; when the major Hispanic organizations feel that this showed real insensitivity to who they were and what their children needed?
Can you explain that memo that really wasn't part of the Reagan agenda? Why did you say this?
ROBERTS: Well, I think, Senator, if I'm remembering the memo, and it was 23 years ago, and the case that was decided was, I believe, again, a divided decision by the Supreme Court, if I'm remembering the memo correctly, it was making the point that the position was inconsistent with the attorney general's litigation policy approach, if that's the right memorandum.
DURBIN: It is.
ROBERTS: Well, in that case, again, as a staff lawyer I thought it was my obligation to call to the attorney general's attention activities in the department that I thought were inconsistent with what he had articulated as his approach.
And that's what I would have been doing in that case. And, again, it would have been apparently supporting the state of Texas in its legislative determination in that area.
DURBIN: Well, did you agree with the decision now -- or, pardon me, then? Or do you agree with it now?
ROBERTS: I haven't looked at the decision in Plyler v. Doe in 23 years, Senator.
And there's nothing gratuitous about the memorandum. It obviously came out because the decision came out. That would have been why I was advising the attorney general with respect to it.
Obviously, the importance of the availability of education for all is vital. That's a different question than the legal issues involved in whether a state law should be struck down...
DURBIN: So let me say this. Twenty-three years later, millions of children have benefited from this decision. They have been educated in America. Many have gone on to become citizens. Some are business people, some are professionals, some are serving in our military today because Plyler was decided in a way that you apparently disagreed with 23 years ago.
So my question to you, for the Hispanic groups that oppose your candidacy at this point -- or your nomination, I should say -- what is your feeling? Is this settled law, as far as you are concerned, about our commitment in education...
ROBERTS: Senator, as I said, I have not looked at the decision in Plyler v. Doe in 23 years. It's not an area that I focused on.
And the issue is not my policy view about what is a good idea for educational policy or national policy or whether what the Texas legislators determined was a good idea for Texas policy.
The question was a particular legal issue. And, again, the Supreme Court was divided on that, so it's not as if we're talking about a position outside the mainstream.
And what I was explaining, this was viewed, as the memo states, if it were looked at in full, it was something that I thought was inconsistent with what I understood the attorney general's approach to be, and it was my job to call that to his attention, which is what I did.
DURBIN: OK. I think you have accurately taken refuge in the fact that you were working for someone. The fact that this memo came out the day after the decision I think is an important circumstance.
But let me go back to the beginning, the first question, the first day, with Senator Specter. Wouldn't it be a jolt to the system in America if we decided that we would no longer offer education to these children?
ROBERTS: Of course. Well, of course, Senator.
DURBIN: And so...
ROBERTS: And the decision in Plyler is a precedent of the court. I don't think -- I'm not aware that it's been called into question in the intervening 23 years that have passed since the time I wrote those two paragraphs in the memo.
And that, as a precedent, is entitled to respect under principles of stare decisis. And it's something that is where I would begin if an issue arose in this area. I'm not aware that any is arising in this area, but if an issue were to arise, that's where I would begin...
DURBIN: I just think millions of Americans would like to have heard you say, I think it's a good idea. I'm glad we did it for America. But if you can't say it, you can't.
ROBERTS: Well, Senator, if I could just make the point that the issue is not whether or not I thought it was a good idea. That's not the job of a lawyer presenting legal advice and legal -- the legal implications of an issue to his boss, the attorney general.
ROBERTS: He wasn't interested in whether I thought it was a good idea or not. He was interested in the legal question of whether or not this was consistent with his policy and his approach.
That's not taking refuge; that's explaining the circumstances of a memorandum. And it's not avoiding an expression about whether it's a good idea or not. It's explaining that what we're dealing with...
DURBIN: But you've been unequivocal in your statement supporting Brown v. Board of Education. No one has suggested, in any respectful way, that we should return to the bad old days of separate but equal. I mean, you've accepted that's part of America.
And the point I'm trying to make to you is whether we're talking about millions of uninsured people or millions of Hispanic children, I would think that it would be a basic value, you'd say, this is good for America, for people to have insurance, and bad for them to be denied. It is good for America to see children with education, rather than to see them in the streets, ignorant. It seems so fundamental.
ROBERTS: Senator, I don't think you want judges who will decide cases before them under the law on what they think is good -- simply good policy for America. There are legal questions there.
And I'm sure there are clients that I have represented in court that you would agree with; you would say, That's the right side of the cause to be on, whether it's the environmental interests I represented in the Tahoe case, whether it's the welfare recipients I represented pro bono in the Bivens case, whether it's the cause of the inmate on death row that I assisted in in Florida, whether it's the environmental interest in Glacier Bay that I represented or in the Grand Canyon on a pro bono basis.
I am sure I could go down my list of clients and find clients that you would say, That's the right side. That's the cause of justice. And there are others with whom you'd disagree.
My point is simply this, that in representing clients, in serving as a lawyer, it's not my job to decide whether that's a good idea or a bad idea. The job of the lawyer is to articulate the legal arguments on behalf of the client.