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Treating Preferential Treatment
John Roberts, Reagan, and common sense.


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Peter Kirsanow

Critics of John Roberts’s nomination to the Supreme Court repeatedly contend that he’s hostile to civil rights. Numerous media reports warn that Roberts’s opponents are prepared to attack him on this issue, citing his alleged position as one of the principal architects of the Reagan administration’s civil-rights policies. As Democrat strategist Donna Brazile recently wrote, “For many leaders of the civil rights movement who helped open doors in areas such as housing and at the voting booth, the Reagan revolution was viewed as creating a political and social climate that was hostile to civil rights programs and enforcement.” (Addressing whether this view comports with reality shall be left for another day.)

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Perhaps the most frequently cited evidence of Roberts’s purported hostility towards civil rights is a memorandum he wrote to then Attorney General William French Smith challenging some of the arguments in a 1981 report of the U.S. Commission on Civil Rights regarding affirmative action (i.e., preferences accorded on the basis of race or sex). A detailed examination of the 64-page report, however, shows that had Roberts not challenged it, it would’ve been evidence of his hostility to rationality.

The report is a primer on identity politics, group entitlements, and elitist social engineering. It’s premise is that standard remedies for cases of specifically identified discrimination are inadequate to level the uneven playing field facing American women and minorities. Damage awards, injunctive relief, and neutral/color blind policies don’t get at the “pervasive, entrenched and varied” forms of discrimination that are a product of the country’s manifest “white supremacy” and “male supremacy.” The country’s “deeply ingrained prejudices” built into its social structures, educational systems, organizations, and government require that numerical disparities between the races and sexes be eradicated by race- and sex-conscious remedies.

In United Steel Workers v. Weber and Johnson v. Transportation Agency, the Supreme Court upheld the legality of private employer affirmative-action plans designed to remedy a manifest racial imbalance in an employer’s workforce resulting from past discrimination or a traditionally segregated work force. Although the terms “manifest imbalance” and “traditionally segregated work force” were sufficiently nebulous for circuit courts to provide their own definitions in a given context, most courts require that there be direct evidence of unlawful discrimination against the beneficiary group. The affirmative-action programs of public-sector employers face an even greater evidentiary burden: the need to survive strict scrutiny under the 14th Amendment’s equal-protection clause. In other words, the program must promote a compelling governmental interest and be nearly tailored to serve that interest. What qualifies as compelling governmental interest in this regard is limited almost exclusively to remedying actual instances of discrimination by a particular employer.

But the U.S. Commission on Civil Rights didn’t see the need for such proof. In fact, the report endorses the use of affirmative-action plans even when there’s been absolutely no evidence of unlawful discrimination. According to the report a mere “imbalance” in numbers, i.e., a showing that the percentage of women and minorities in an organization/workplace is below their respective percentages in society at large, is all that’s needed to impose an affirmative-action requirement. The report makes clear that this bit of utopian social engineering needn’t be justified by a causal connection to anything more definitive than the country’s general history of discrimination–the stated presumption being that but for such history the percentage of women and minorities in virtually any occupation or endeavor would virtually mirror their percentages in society as a whole.

The report blithely rationalizes any negative affects this racial bean counting may produce by noting that “[a]lthough affirmative action plans may adversely affect particular white men as individuals, they do not unfairly burden white men as a group” (emphasis in the original); moreover, “the lessened opportunities for white males are incidental, temporary and not generated by prejudice against those who are excluded.” The elite mindset couldn’t have been captured much more succinctly.

It’s evident that a lot of time and effort went into the report. But as Roberts stated to the attorney general, “The logic of the report is perfectly circular.” Consider just this declaration from the report: “Affirmative action plans end when non-discriminatory processes replace discriminatory ones.” The commission may have been oblivious to this obvious tautology but Roberts wasn’t. He forwarded a copy of the report to the attorney general stating, “The report is attached, although I do not recommend reading it.”

It’s odd that Roberts’s opponents would attack his confirmation on an issue where public sentiment clearly supports the positions in Roberts’s memo. Polls regularly show that a significant majority of Americans, including a plurality of minorities, oppose the use of preferences (the numbers tighten when the more benign term “affirmative action” is polled).

The good news for his opponents is that whatever effect polls may have on Roberts’s chances for confirmation, his judicial approach to preferences won’t be governed by poll. The bad news for Roberts’s opponents is that his approach will be governed by law.

Peter Kirsanow is a member of the U.S. Commission on Civil Rights and an attorney in Cleveland, Ohio. These comments do not necessarily reflect the position of the commission.



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