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Monday, August 01, 2005

“What Do You Think About That?”

In my old high school debate club, there was a rule against sermonizing in questions. They were, after all, supposed to be questions and not statements. The easy way around this- an eminently mockable one which nonetheless was used by all- was to issue a verbal salvo and end it with, “What do you think of that?”

I remember that key phrase now, because in coming months I expect to hear it more and more, as Biden, Kennedy, Feinstein, the recently high-profile Durbin, and others get the chance to pounce on President Bush’s Supreme Court nominee John Roberts. The question is: what will “that” be?

So far, one of the key lines is that he is weak on civil rights. The basis of this claim are released memos from Roberts, which he wrote while Associate Counsel to Reagan under Fred Fielding. In this capacity, Roberts job was to represent someone else’s views and interests. He was an attorney, and legal advice given in memos cannot fairly be construed to be his own beliefs. But, whether reading into memos from the 1982-1986 period is justified or not, it doesn’t take much extra research to see that Democrats are attempting to jam the square of opposition to racial preferences in college admissions into the circle of civil rights.

In fact, this claim stems from Roberts’ opposition to clear and unabashed racial preferences in academia. Not opposition to black outreach programs, or to financial aid or equal treatment or any such pillars of civil rights. But against preferences. In other words, racial quotas are now being made a basic tenet of civil rights. This is hardly supported by the American majority, nor by decent jurisprudence. But Roberts will be attacked through it.

The evidence, in part, is this memo, which was prepared by Roberts for Fred Fielding, Reagan’s chief lawyer. It argues merely that Congress has the power to stop federal courts from ordering busing, the then-10-year-old practice which had proven in many venues to make segregation problems worse. The term for this back then was, “white flight.”

John Roberts does not argue against the practice of busing itself, but he does lay out the case for expanded Congressional powers. His argument, in fact, is quite liberal. Roberts’ memo led to the conclusion that Congress, when faced with courts which were upholding policies that resulted in increased segregation, had the power to decide (under the Fourteenth Amendment) that the courts cannot create segregationist policies via their rulings. By 1984, the evidence showed that forced busing resulted in segregation, and so, Roberts concluded, Congress ought to be allowed to stop the courts from mandating busing.

Roberts has also argued against racial quotas, which Paul Mirengoff elegantly summarizes:

The Reagan adminisration [as represented by Roberts], 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.

The two positions for which Roberts is coming under attack are not questions of civil rights at all, but rather gaudy liberal ideas that, though their luster may have appealed as America was just emerging from the forest of segregation, have since proven to be not only unjust and ineffective, but in many cases unconstitutional. MSM claims that John Roberts is “soft” (or whichever adjective strikes their fancy in weeks to come) on civil rights are thus wholly disingenuous.

And when Democrats get to go head-to-head with Roberts, I expect plenty of sermonizing in question form. Because Roberts will easily be able to repudiate fanatical calls of racism with the facts.

Posted on August 1, 2005 10:09 PM. Permalink