We thank NRO Contributing Editor Roger Clegg for pointing out one minor inaccuracy in our 108-page report, which a Los Angeles Times editorialist–who doesn’t oppose Judge Roberts–has called “impressively thorough and … restrained…” We have corrected the report to remove any suggestion that it was unusual for a deputy solicitor general like Judge Roberts not to be on a reply brief.
We also thank NRO for pointing out that the White House ordered the Solicitor General’s Office to withdraw its argument that Mississippi had no constitutional obligation to provide historically black colleges with increased funding in order to remedy a long history of discrimination. The White House’s order only underscores our original point that Judge Roberts supervised and co-signed a brief that took an unduly restrictive position on desegregation remedies. Mr. Clegg says he agrees with the initial argument that Ken Starr and Judge Roberts made. But the George H.W. Bush White House didn’t. Neither did eight justices on the Supreme Court.
Roger Clegg responds: It’s good that Nan Aron has corrected two of the report’s “inaccurac[ies]“–which were hardly “minor”–but I don’t want to leave her with the impression that, in writing about this one section of the report, there weren’t problems elsewhere. Here are a couple more (and, no, these are not meant to be exhaustive either).
On page 10, the report asserts that Roberts was a “member” of the National Legal Center for the Public Interest. This is not true; I used to be general counsel of NLCPI, and it is not a membership organization. It is true, as the report also goes on to say, that Roberts “served on the Legal Advisory Council” of NLCPI, and the report ominously footnotes this: “Other Board Members and Legal Advisors of the Center include prominent conservatives, such as Douglas Kmiec, C. Boyden Gray and Kenneth Starr.” That’s also true enough, but the report conveniently ignores the bipartisan membership of the Center’s Board and Council, which has also included former Democratic officials like Clifford Sloan, Walter Dellinger, Seth Waxman, Griffin Bell, and Robert Strauss.
On page 92, the report describes the vote in Withrow v. Williams as 6-3, “with Justices Rehnquist, Scalia and Thomas in dissent.” In fact, it was 5-4, with Justice O’Connor writing the opinion–the lead dissent, actually–that Chief Justice Rehnquist joined. It is, of course, most inconvenient for the report that Justice O’Connor–the Left’s gold standard for an acceptable Republican justice–would have voted for Roberts’s position, but indeed she did.
What’s disturbing is that the more you know about something, the likelier it appears to be that you’ll find an error about it in the report. I worked on the Mississippi higher education case when I served at the Justice Department, and I found mistakes in that part of the report. I also used to work at the National Legal Center for the Public Interest, and I found mistakes about it in the report, too. A couple of weeks ago, for another NRO piece, I looked at Withrow v. Williams, and, sure enough, it turns out that the report made a mistake in discussing it as well.
On a lighter note, here are two more: On page 51, the report snidely puts a “sic” next to the word “signalled” in one of Roberts’s memos. But that’s an acceptable spelling.
And, by the way: Aron begins her letter by proudly quoting an editorialist in the Los Angeles Times as calling her report “impressively thorough and … restrained ….” Well, here’s the editorialist’s full sentence: “In fairness, the alliance’s analysis of Roberts’ record is impressively thorough, and it’s restrained by the shrill standards of most advocacy propaganda.” Being “restrained” is hardly the same thing as being “restrained by the shrill standards of most advocacy propaganda.”
It’s understandable that Aron would not want to quote the phrase “advocacy propaganda.” That is, of course, the most charitable way to describe the Alliance for Justice’s report–and everyone knows it. That is why the report is unlikely to be taken seriously–and shouldn’t be.