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Bench Memos

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Roberts and the “Gender Gap”



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In sharp contrast to (dare I say it?) the much more measured New York Times piece, today’s front-page Washington Post article on the Roberts records that were released yesterday clumsily plays the gender card. Its inflammatory headline, “Roberts Resisted Women’s Rights,” makes it seem as though Roberts was opposing established legal rights when he was in fact fighting highly controversial leftist proposals involving gender quotas and comparable worth.

Let’s examine briefly the seemingly cumulative specifics in the tone-setting first two paragraphs of the article. With two exceptions, those specifics amount to nothing more than gender quotas and comparable worth.

The first exception is Roberts’s advice on the proposed Equal Rights Amendment. The article asserts that “Roberts urged President Ronald Reagan to refrain from embracing any form” of the ERA. The documents that I have seen show, rather, that Roberts pointed out to others in the White House that “[m]any of the President’s objections to the ERA are based not on the particular language of the [then-pending] proposal but rather the vehicle of a Constitutional amendment.” These same objections—that the ERA would “override the prerogatives of the States and vest the federal judiciary with broader powers” and that it is “not necessary to secure equal rights” (since ordinary legislative action was available for any steps deemed appropriate)—would apply to any other version of the ERA. In short, Roberts was explaining the clear implications of established Reagan administration policy.

Second, the article cites Roberts’s quip questioning “whether encouraging homemakers to become lawyers contributes to the public good.” I acknowledge that this red-hot memo involving a Clairol shampoo contest somehow escaped my attention. But when one learns the context 11 paragraphs later, it is clear that Roberts’s quip is a joke aimed at lawyers, not at women. But a sense of humor is in short supply among the gender activists, and perhaps the new rallying whine on the Left against Roberts will be “That’s not funny!”



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