“John Roberts repeatedly expressed hostility to affirmative action and efforts to remedy the sharp disparities between the wages of women and men.” So said Ralph Neas, president of the People for the American Way, Wednesday when formally announcing his group’s opposition to Roberts’s nomination to the Supreme Court.
There are two ways to handle this sort of drivel: The first is to say that a person’s policy preferences are not the same thing as a person’s judicial philosophy, and that only the latter ought to matter to the Senate. This is quite correct, but is a hard to explain in the noisy court of public opinion, and impossible to explain to most Democrats, who deny that there is or ought to be much of a distinction between what you think is good policy and how you vote as a judge. So a backup tactic is probably needed.
This other approach is to say, fine, if you want to have a debate over racial preferences and government wage-setting, let’s have it. But note the subtle shift here, from “affirmative action” to “racial preferences” and from “efforts to remedy the sharp disparities between the wages of women and men” to “government wage-setting.”
Of course, this is more than a cheap rhetorical trick: It is a perfectly legitimate insistence on being clear and accurate in what we’re debating.
“Government wage-setting” is exactly what comparable worth–which Roberts criticized–is about. It is not about whether female truck drivers should get paid the same as male truck drivers. It is about whether the government should determine the true worth of all jobs, and then adjust pay scales at the point of a gun barrel whenever a male-dominated job (truck drivers) gets higher wages than a female-dominated job (paralegals) that the bureaucrats have determined to have the same social worth. Fine: Let’s debate that.
As for “affirmative action,” Ralph Neas loves that phrase precisely because it’s so imprecise. It’s original meaning, when President Kennedy first used it in the civil-rights context (in an executive order that he signed in 1961), was taking positive steps, proactive measures–that is, affirmative action–to make sure that no one was being discriminated against because of race. Another early meaning was “casting a wide net”–that is, not just recruiting through an old-boy network, but publicizing employment, contracting, and educational opportunities far and wide. And you send recruiters not just to the suburban high schools, but to the inner-city high schools; you buy ads in black media as well as the New York Times; and so forth.
The trouble for Ralph Neas is that neither one of these kinds of affirmative action–which many Americans probably think of when they hear the phrase–is controversial anymore. Nobody has any policy objection to them; there are certainly no legal problems with them; John Roberts has never criticized them.
No, the only kind of affirmative action that raises any policy or legal objection is what Nathan Glazer rightly renamed “affirmative discrimination”–giving people preferential treatment on the basis of race, ethnicity, or sex. How do Americans feel about that?
Well, here’s the question from a 2001 survey by the Washington Post, Harvard University, and Henry J. Kaiser Family Foundation (not exactly the vast right-wing conspiracy): “In order to give minorities more opportunity, do you believe race or ethnicity should be a factor when deciding who is hired, promoted, or admitted to college, or that hiring, promotions, and college admissions should be based strictly on merit and qualifications other than race or ethnicity?” Now, that’s more than evenhanded: It says that the reason for the proposed policy is “to give minorities more opportunity,” and that race and ethnicity would just be “a factor,” and that the alternative is for race and ethnicity to be “strictly” ignored–all pushing for a preference-favorable response, right?
Except that 92 percent of those polled said that we should ignore race completely. That includes not only 94 percent of whites, but 86 percent of blacks (and 88 percent of Hispanics and 84 percent of Asians).
So this is a debate that Roberts’s supporters will win hands down, as long as they force his opponents to admit what it is that they want to debate.
–Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.