With Justice O’Connor’s retirement, we are losing the first woman to serve on the Supreme Court and the deciding vote to protect the reproductive freedom, and the rights, and the basic dignity of all women.

It was Justice O’Connor, for example, who built the 5 to 4 majority to reaffirm Roe v. Wade in 1992. It was Justice O’Connor who cast the deciding vote to protect a woman’s health in 2000.
And it was Justice O’Connor who wrote two 5 to 4 decisions in the last six years protecting girls and their coaches from discrimination under Title IX.

We need to know whether Judge Roberts will follow in her moderate tradition or side with the extremist views of Justices Scalia and Thomas.

And when I say “we” need to know, I am not just talking about “we” the senators. I am talking about “we the people.”

A few weeks ago I joined with six other democratic women senators to launch a new Web site that allows the public to submit questions for John Roberts.

You can see the Web site on the podium here … democrats.senate.gov/askroberts
And I invite all Americans who have questions to submit them.

We have already received 15,000 questions from people all over the country. Here are just a few examples:

“Do you, Judge Roberts, plan to fill this vacancy on the Supreme Court with the same moderate, ethical, and constitutional standards shown by Justice O’Connor?

Another asked: “As a Supreme Court Justice, will Judge Roberts recognize that women still face inequality of pay and that government intervention, such as affirmative action, is still needed to level the playing field?”

And then there’s this one that came up again and again: “Do you believe that a woman has a basic right to privacy and control over her reproductive choices?”

We know that 65% of Americans do not want Roe v. Wade to be overturned. They believe that Americans have a right to privacy, and that their personal decisions should be made by them—not by a Senator, a Congressman, a President, or a Judge.

Yet, this right is on the line. Just a few months after the new Justice is sworn in, the court will hear arguments in Ayotte v. Planned Parenthood. It is a case that may determine whether the health exception, which is the centerpiece of Roe, will remain. And, if confirmed, Judge Roberts could be the deciding vote.

Roe was very clear…if a pregnancy threatens a woman’s health, and abortion is the only way to save her health, then she must have that right. No exception.

This is not some ivory tower intellectual theory. If women are denied abortions in these dire circumstances, they could lose their fertility…have liver, kidney or brain damage… even be paralyzed for life. Imagine what this one Supreme Court vacancy, this one vote, can mean to countless women.

Here is what we know about where Judge Roberts stands.

As Deputy Solicitor General he co-authored a brief that states that Roe v. Wade was, “wrongly decided and should be overruled.”

In a government memo he wrote in 1981, he referred to a “so-called” right to privacy.

Suppose I said, “Your so-called right to free speech,” or, “your so-called right to vote”…that would be a stunning attack on our fundamental rights. I view the term “so-called right to privacy,” as a stunning attack on a basic American value. Judge Roberts must let the American people know if he thinks the right to privacy is a “so-called” right…or, in fact, a right guaranteed by the Constitution, which is the current view of the Supreme Court.
Judge Roberts did not say whether he believes in a constitutional right to privacy during his D.C. Circuit Court of Appeals confirmation hearings, nor did he directly answer questions about Roe v. Wade, which he simply said was “settled law.”

Well, as a member of a circuit court, it is true that Roberts had to view Roe as “settled law,” but on the Supreme Court, it is a whole other story. The Supreme Court can set and break precedent, as was so clearly stated by Attorney General Alberto Gonzales.

We can never forget the days before Roe…the days of back alley dangerous illegal abortions when thousands of women died every year. We cannot go back to those dark days. And Judge Roberts cannot duck this issue.
A recent AP poll found that 65% of Americans, including a majority of Republicans, think it is important for the Senate to know Roberts’s stance on abortion before we vote.

But the questions on reproductive freedom go beyond Roe.

John Roberts was the principal Deputy Solicitor General from 1989 until the beginning of 1993. During that time, he argued before the Supreme Court in Bray v. Alexandria Women’s Health Clinic.

In that case, Roberts sided with some of the nation’s most violent anti-choice extremists. His argument: these massive violent demonstrations blocking women from entering health care clinics in Virginia were not discrimination against women, and that stopping them was up to the states. That meant no Federal Marshals to protect these women.

And it wasn’t just in Virginia. A few months before Roberts first argued the case in front of the Supreme Court, a Wichita clinic was shut down for weeks by thousands of protesters. It didn’t open again until a federal court judge, Patrick Kelly, issued an injunction and called in the Federal Marshals.

Instead of waiting for the Supreme Court to decide this issue, the Justice Department intervened in Kansas as well to say, again, that there wasn’t any federal role.

John Roberts defended this position on TV, arguing that the Justice Department hadn’t taken away the Federal Marshals. That argument was disingenuous. Because if the Justice Department’s view was followed by the courts, the Marshals could no longer protect the women and staff in Wichita.

The Judge in Wichita was so angry that he took the highly unusual step of appearing on ABC’s Nightline to, in his words, “speak to the Attorney General of the United States to tell him that he has given [the protesters] an imprimatur to what in my view is a license for bloodshed.”

Many of us know exactly what those blockades can be like. We have seen the aftermath of bombings and arsons. We have seen terrified women who are carried over protesters to get into clinics. We have seen patients and doctors videotaped, harassed, spied upon.

When John Roberts and his office sided with dangerous anti-choice extremists in 1991 and 1992, clinic violence was rampant, and he would have known it.

He would have seen the headlines in Columbus, Ohio: “Abortion Clinic Heavily Damaged by Firebomb.” Or, “Abortion Clinic Under Siege,” in a New York Times story about Wichita, Kansas. And in the Los Angeles Times: “Huge Protest at Abortion Clinic Turns Violent.”

He would have read the statistics. From 1989-1992 there were an estimated 48 clinic bombings in 24 states. There were 57 attacks of butyric acid, a foul smelling chemical that irritates the eyes and respiratory tract and often causes burns and nausea. There were more than 350 blockades and 4,000 bomb threats, hate mails and other forms harassment.

He would have known that this violence was part of a nationwide conspiracy to keep women out of clinics and that state and local officials were often unable, or even unwilling, to help. And in some targeted states, the attorneys general were begging the federal government to step in.

Most troubling of all, Judge Roberts would have known which side of the case he was joining. He was on the side of Operation Rescue and its notorious leader Randall Terry, who had been jailed many times.

And he was on the side of Michael Bray, who had spent 4 years in prison for bombing or setting fire to 10 women’s health clinics in the Washington D.C. area.

Five months before Judge Roberts made his final oral argument before the Supreme Court in this case, Michael Bray testified at a congressional hearing. He was asked: “Are you suggesting that you believe it would be appropriate to kill somebody who is involved in the delivery of abortion services?...”

“Clearly,” Bray responded. “As far as the ethical question goes, yes.”

It is deeply disturbing that after Michael Bray defended the right to kill, John Roberts continue to argue on his side.

Roberts narrowly won the Bray case in January 1993. Justice O’Connor issued a strong dissent and the rhetoric and violence at clinics got even worse. “Open up the floodgates cause here we come,” Randall Terry announced. Just two months later, Dr. David Gunn was assassinated entering a clinic in Pensacola, Florida.

Congress responded by passing the Freedom of Access to Clinic Entrances Act which has helped decrease this domestic terrorism over the last 10 years. I was the assistant floor manager of that bill. I remember the passionate speeches by Senators who understood that the federal government had to bring security to our clinics and the women they serve. “Whatever one’s feelings on reproductive choice,” I said that day, “I know we can all agree that the fear and violence must be stopped.”

Now I’m sure Judge Roberts does not condone violence. But he played a top leadership role in deciding which cases to appeal, and how. And he must tell us why he used his powerful position to side with Operation Rescue and a convicted bomber?

The answer that it is the state’s responsibility to stop nationwide, coordinated, violent attacks is wrong and all too reminiscent of the civil rights battles of the past. It took the Federal Marshals to finally protect those seeking equal rights back then, and it took Federal Marshals to protect women from Operation Rescue in recent years.

One thing is certain: the people John Roberts sided with in that case have only great things to say about his nomination. The lawyer who represented the anti-abortion extremists in Bray, said, “I think this is a tremendous pick.” Operation Rescue’s current president said he was, “thrilled.”

Throughout our history, women, minorities, and others left behind, have often relied on the federal government—and our greatest of documents, the Constitution—to protect their rights. And yet, Judge Roberts’s record suggests a very narrow view of Congress’ role in protecting women and families.

In a 1999 interview on NPR, Roberts said, “We have gotten to the point these days where we think the only way we can know we’re serious about a problem is to pass a federal law, whether it is a Violence Against Women Act or anything else.”

Why did Roberts cite the Violence Against Women Act, which has done so much to stop domestic violence and heal those it strikes? Does he think the federal government has no authority to protect women from violence? That certainly seemed to be his opinion in the Operation Rescue case.

And what about Title IX which has allowed generations to compete in and out of the sports world? Since it was enacted in 1972, female athletic participation has increased by 800% in High schools and 400% in colleges.

That might not have happened if the narrow view of Title IX taken by John Roberts during the Reagan Administration had ultimately prevailed. Instead, it was overturned by Congress.

Now some say that Roberts’s work for the government should be off-limits – that he was just representing clients, and that nothing can be inferred from his words and actions.

It is important to note that in the Solicitor General’s office, Roberts was setting policy–and doing so by his own admission. In 1991, he described his job as having “final responsibility for determining whether the United States would seek further review of adverse decisions in 380 cases.”

If John Roberts disagreed with any of the controversial policies he championed while in government, the burden is on him to say so, and not duck the questions.

Of course, there are those who say that Roberts should only give general answers at his confirmation hearings, and not specify his views on key issues.

But, Senator John Cornyn, a leading Republican on the Senate Judiciary Committee who supports the Roberts nomination, said on July 3rd: “I think it's an appropriate question to ask (nominees), what their views are on cases that have been decided and judicial opinions that have been written.” And we must.

The White House has refused to give the Judiciary Committee memos Judge Roberts wrote while he worked in the Solicitor General’s office under Ken Starr. The request is targeted to only 16 cases that Roberts worked on –and it must be fulfilled.

Otherwise, think of the message it would send to Presidents of both parties: you can put forth nominees with thin judicial records, make the rest of their career off limits, and caution them not to answer specific questions about their views.

That is not what our founders meant by advice and consent. And that is not the kind of precedent we can afford to set for any nomination, especially a lifetime appointment to the highest court in the land.

Before my colleagues and I cast one of the most important votes of our lives, we must get all the information we need to understand how Judge Roberts will impact the lives of Americans for generations.

The Supreme Court building is right across from my office. I walk past it on my way home from work. And these days, I am even more struck by the powerful words etched above its entrance: Equal Justice Under Law. Not justice for the well connected and the powerful. Not justice for some of us. But equal justice for everyone.

I am in the Senate today because for the last 13 years I have promised to be a Senator for all the people of our State and our country. To protect the rights and freedoms of all the people of our State.

I intend to do that.

Thank you.


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