Quarreling About Quotas

Published August 5, 2005

National Review Online

Over the past two dozen years, John Roberts has advanced from being a junior lawyer in the attorney general’s office and the White House Counsel’s office, to establishing himself as the premier appellate advocate in the country, to serving with distinction as a judge on the U.S. Court of Appeals for the D.C. Circuit, to being nominated, to wide acclaim, to sit on the Supreme Court. During that same period of time, the so-called civil-rights groups on the Left have gone from quarreling about quotas, bickering over busing, and impugning as extremist anyone who shares Martin Luther King Jr.’s vision of civil rights to … quarreling about quotas, bickering over busing, and impugning as extremist anyone who shares Martin Luther King Jr.’s vision of civil rights.

Let’s strain credulity and assume for now that the concerns that have been raised about Roberts’s civil-rights views in the 1980s are entirely sincere, and not a gambit by the Left to try to generate some traction in opposing Roberts’s confirmation. As it happens, two of Roberts’s own documents that have been made available from that time cogently explain that the real battle was over rival visions of civil rights generally — and quotas and busing specifically. As Yogi Berra famously put it, “This is like déjà vu all over again.”

In March 1982 Attorney General William French Smith delivered a speech on civil rights to a United Jewish Appeal conference. Roberts’s documents from that time include an early outline of the speech as well as the first draft sent to the attorney general. It is not clear whether Roberts drafted the outline or merely provided comments on it. It is similarly not clear which parts of the first draft Roberts prepared; his colleague who submitted the draft commented that it had “been prepared with very substantial assistance from” Roberts. But irrespective of who drafted what, it is clear that the core argument in those two documents — which I will, for sake of simplicity, refer to as Roberts’s argument — reflects the understanding of civil rights that Roberts’s overall record from that time displays.

Roberts’s argument is that there are two competing visions of civil rights. The first vision — his vision, Martin Luther King Jr.’s vision, the traditional American vision — is guided by the principle that “individuals should be treated as individuals, without regard to race, creed, or ethnic background.” That vision sees “America as the new world of individual merit, not membership in caste or social groups.” It appeals to the first Justice Harlan’s dissent in Plessy v. Ferguson: “The law regards man as man, and takes no account of his surroundings or of his color.” Roberts acknowledges the ugly reality, most manifest in slavery, that this vision “has not always prevailed over bigotry.” But he sees it as animating the “great ideal of equal opportunity,” which “underl[ies] the constitutional guarantee of equal protection and the civil rights laws.”

A second, very different vision of civil rights had emerged from recognized leaders of the civil-rights community. That vision was focused on “advancing particular groups as groups.” Adherents to that vision were attached to remedial devices, like quotas and busing, that not only had proven ineffective but that elevated equality of results among groups above individual opportunity.

Although his critics attempt to obscure the fact (see second paragraph here and here), it is the difference between those visions that explains their disagreement with Roberts’s record. Take the issue of racial quotas. In instances of employment discrimination, Roberts advocated making individual victims whole rather than providing group relief through quotas. In government contracting, he opposed efforts by the Department of Labor to require government contractors to give race and sex preferences — a softer form of quotas — as a condition of doing business with the government. And with respect to the Voting Rights Act (see here and here), Roberts opposed a change to section 2 of that Act that he recognized would create a sort of racial quota system for electoral politics.

Likewise on forced busing. The draft speech expresses full commitment to the mandate of Brown v. Board of Education that “[n]o child should be assigned to a particular school on the basis of race, and no child should receive less of an educational opportunity because of race.” But the supposed remedy of forced busing, instead of achieving desegregation, had resulted in dramatic reductions in white enrollment in public school systems. In a passage that seems to bear Roberts’s rhetorical mark, the draft declares, “I do not consider it progress to act against one-race schools in a way that produces one-race school systems.” (The Left’s ardent opposition to school choice — the best hope of poor blacks for a quality education — shows that it still subordinates educational opportunity to other objectives, such as ideological secularism or the retrograde interests of teachers’ unions.)

There are, of course, other unfounded attacks on Roberts’s record. Some of these are downright silly: Roberts, it is claimed, gave a narrow reading to the sex-discrimination provisions of Title IX when he read its plain language to mean exactly what the Supreme Court, in an opinion joined by Brennan and Marshall, had said four months earlier. Other distortions are much more insidious and vicious, as they seem designed to paint a false portrait of Roberts as disrespectful of blacks:

It is not true (see sixth and seventh paragraphs here), as the Washington Post has insinuated, that Roberts advised the attorney general to make phony excuses to Martin Luther King Jr.’s widow why no further funding could be provided to a program her organization was running.

It is not true, as the New York Times has asserted, that Roberts stated that “affirmative action programs were bound to fail because they required ‘the recruiting of inadequately prepared candidates.'”

It is not true, as the Washington Post has asserted, that Roberts “derided” a report provided by Arthur Flemming, the chairman of the U.S. Commission on Civil Rights.

When the civil-rights charges against Roberts are carefully examined, they collapse into the Left’s feeble position on the deeply unpopular issues of racial quotas and forced busing. Let’s hope that the Left succeeds in getting Senate Democrats to fight Roberts’s nomination on those grounds.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations.

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