The left is beginning to piece together its coalition of the usual suspects in preparation for an all-out campaign against John Roberts. First, it was the abortion lobby. Now, the racial preference lobby is starting to come on board. Today it got a nice boost from a front page story in the Washington Post by R. Jeffrey Smith, Jo Becker and Amy Goldstein. The story focuses on memos that Roberts wrote in the early 1980s when, as a special assistant to the Attorney General, he provided advice on civil rights law issues.
If one reads long enough, past three authors’ breathless rhetoric about “the vanguard of a conservative political revolution in civil rights” and “government antidotes to bias in housing and hiring,” one can begin to discern the real issue that the Reagan administration was concerned about — racial quotas. In education, the issue was busing students out of their neighborhoods in order to ensure government-decreed levels of black representation in public schools. In employment, the issue was attempts to impose numerical balance in the workplace, instead of simply insisting that employees and applicants be evaluated fairly, without regard to race. In voting, the question was whether it was sufficient to make sure that everyone could vote and that legislative districts were not drawn in a way that thwarted the election of African-Americans. Many liberals wished to go further and draw districts in a way that basically ensured the election of a set number of blacks.
These efforts were often were contrary to the letter (not to mention the spirit) of federal civil rights legislation. For example, the provision of the Civil Rights Act of 1964 that banned employment discrimination against blacks contained clear anti-quota language. It had been added by the liberal sponsors (notably Hubert Humphrey) to counter claims by George Wallace, who happened to be running for president, and others that the Act would result in discrimination against whites. Without Humphrey’s assurances that this would not be the case, and the language saying so, the legislation would not have passed.
The Reagan adminisration, then, was simply trying to restore the original understanding of the civil rights legislation (from only 15 years earlier) that the government would not countenance race-based decision-making. Far from being outside of the mainstream, the Reagan administration’s effort were consistent with the views of a clear majority of Americans. Racial preferences have never had popular support. Indeed, during the 1990s voters in two very blue states, California and Washington, passed anti-preference referenda.
So what does this mean for Roberts now? The left’s first task is simply to arouse the “civil rights” community, which I imagine it has already accomplished. Then, it needs to present the issue in a false light, as being about “civil rights” not racial preferences. Articles like the one by Smith, Becker, and Goldstein will help. Finally, though, it must sell this line at the confirmation hearings. This won’t be easy because Roberts will be there to defend himself. Expect some very long “questions” by Senator Biden and his pals.
UPDATE: Ed Whelan has much more on this subject at NRO’s Bench Memos.
JOHN adds: The issue here, obviously, is political, not legal. And the problem is that the Republicans have lost the will to advance an anti-race discrimination position in a straightforward way. If Roberts were to respond to “questions” from Democratic Senators by saying forthrightly that he opposes race discrimination, period, 75% of Americans would not only agree with him, but would consider a clear anti-discrimination position to be most welcome in a nominee to the Supreme Court. The Democrats are able to gain ground on the “civil rights” issue, and a number of other issues, only because the Republicans have checked out and refuse to defend their position–or, at least, what used to be their position. This is a huge problem across a wide range of issues, about which we’ll have more to say in the weeks to come.
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