If you can get past the silly, snotty opening of this piece by Noam Scheiber of the New Republic, there’s food for thought in his discussion of the contrast between the policies of President Reagan (which John Roberts backed) and the current President Bush on racial preferences.
Scheiber begins his piece with the preposterous claim that the favorite thing for conservatives about the nomination of Judge Roberts (at least as far as their public utterances were concerned) is that he is a white male. It is true that conservatives liked the fact that Bush apparently made the nomination without regard to race or gender. And they were relieved that he had not nominated the particular female (Judge Clement) and the particular Hispanic (Alberto Gonzales) rumored to be under serious consideration, since they consider neither to be as conservative as Roberts. But conservatives certainly would have been happy if Edith Jones or Janice Rogers Brown been nominated, and unhappy if Bush had selected Lindsey Graham. Under these circumstances, Scheiber’s race and gender baiting is a cheap shot.
Scheiber is correct, however, when he notes that Roberts’ 1980s-era memos about civil rights issues take a strong position against racial quotas that is inconsistent with the positions taken by the current Bush administration. We have criticized Bush’s softness on this issue, reflected most notably in the Justice Department’s brief in the University of Michigan quota cases.
Scheiber engages in wishful thinking, however, when he speculates that this difference (assuming that Roberts hasn’t changed his view) has any significant political consequences. Acknowledging that nothing in Roberts’ anti-quota memos suggests racism or intolerance, Scheiber nonetheless claims that the weight of his civil rights positions have the effect of casting Roberts as someone out of step with the current political consensus on race, or at least with the tentative peace Bush’s GOP has forged. And he contends that this represents a “political liability” for Republicans.
Scheiber makes two questionable assumptions. First, he assumes that the current political consensus on race is pro-quota. Bush does tolerate quotas to a degree (though not enough for the “civil rights” lobby), but whenever the voters have been permitted to weigh in, racial preferences have been rejected. Indeed, this has occurred in the decidedly “blue” states of California and Washington.
Second, Scheiber assumes that Roberts’ views on racial preferences will have political fall-out. The issue certainly will come up in the Senate hearings, and may be of marginal use to Roberts’ opponents in putting together a coaltion that can pressure a few more Senators into voting against confirmation. But how many Americans are going to vote Democrat (or Republican) because Roberts does not, or did not not, like quotas? A major Supreme Court decision on the issue conceivably could change a few votes. But it probably will be years until Roberts votes in a high profile quota case, and there is no reason to assume that, even then, his vote will be decisive.
President Bush will probably nominate an African-American or Hispanic to the Court before he’s done. He’s already had two African-American Secretaries of State. These kinds of strokes probably matter politically. Roberts’ views on racial preferences don’t.
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