EDITOR’S NOTE: This piece by Susan Mandel appeared in the May 28, 1990, issue of National Review. (You can dig into NR’s archives anytime here.)
When Senator Edward Kennedy went to Georgetown University in April to deliver a major address on the state of the Democratic party, the auditorium was barely half full. Only two months earlier, Gentlemen’s Quarterly had published a piece on the senator detailing some of the juicier aspects of his rather public private life. Yet despite the scandals and the apparent lack of interest among the Democratic faithful, the senior senator from Massachusetts is probably more influential today than ever before. The Wall Street Journal recently ran a story under the telling headline: “Kennedy’s Views Are Listened to Frequently and Seriously by Bush, Quayle, and Sununu.”
As head of the Senate Labor and Human Resources Committee, Senator Kennedy sets much of the federal government’s domestic agenda. His huge staff constitutes a virtual Democratic White House in exile, and it has helped him get more initiatives enacted into law than the vast majority of his colleagues. Liberalism may be passé, but its crown prince is having all too much success in pushing America down the road to serfdom.
Indeed, American society will increasingly be organized along racial lines if Senator Kennedy has anything to say about it. His two big projects this year, the Civil Rights Bill of 1990 and the Racial Justice Act (incorporated into the Crime Bill), would make quotas the rule in the workplace and the execution chamber respectively. However, in the case of the Racial Justice Act, quotas are really just a ruse for overturning capital punishment.
It works like this. The racial mix both of killers sentenced to death and of their victims would have to match perfectly the mix in the general population, a concept so fraught with legal difficulties that no one could be executed. This was the point made in a letter sent to senators in March by the attorneys general of 23 states.
The statistics “don’t have anything to do with discrimination,” says Georgia Deputy Attorney General William Hill, who is black. “Our criminal-justice system does not lend itself to mathematical predictability. If you could mathematically predict the outcome of a trial, there’d be no reason to have trials.” Justice Department figures, moreover, show that white murderers are about twice as likely as black ones to receive the death penalty. True, cases involving white victims are more likely to result in a death sentence. But, says Mr. Hill, that’s because they tend to suffer on the one hand the most cold-blooded murders (for hire, for the insurance money), and on the other hand the most brutal murders (involving rape, sodomy, and mutilation). With some 80 percent of Americans in favor of the death penalty, the only political tactic left for opponents is to cloud the issue by raising the specter of racism. The Kennedy proposal is all the more disingenuous given that the Crime Bill, to which it is attached, purports to reinstate the federal death penalty, which the Racial Justice Act would render automatically unenforceable. “The only way Kennedy can win on this issue is by deception,” says one congressional staffer.
The General Accounting Office helped with the deception with its report in February supporting the contention that the death penalty is being imposed in a racially discriminatory manner. Rather than do an original study as Congress had ordered it to, the GAO simply reviewed previous ones, half of which were over 15 years old (again contravening Congress’s orders) and many of which had already been discredited; in some cases, the GAO actually misrepresented the findings. Who gave the GAO the okay simply to review the existing literature? Senator Kennedy’s office.
If previous death-penalty votes are any indication, however, Republicans stand a good chance of stripping the Racial Justice Act from the Crime Bill when it comes to the Senate floor, sometime around May 20. Only 27 senators voted against the death penalty when the Senate considered a proposal to institute it for drug-related murders in the District of Columbia a few weeks ago. Still, they’ll be somewhat more reluctant to go against a proposal that appears to redress racial discrimination.
In any case, that battle will be a piece of cake compared to the one over Senator Kennedy’s Civil Rights Bill, expected to come up for debate in early June. This proposal would overturn no fewer than 25 Supreme Court decisions. Here again, proponents of the legislation are careful to downplay its importance. They’ve billed the measure as merely reinstating statutes struck down in five 1989 Supreme Court decisions. But as former Justice Department lawyer Glen Nager testified before Congress, “The legislation is neither restorative nor curative; it is new and radical. It seeks to restructure our entire civil-rights scheme.”
The bill would set current anti-discrimination law on its head. It would change the focus from providing equal opportunity for employment to absolutely requiring exact representation of minorities at every level of every organization employing over 15 people. It would shift onto employers the burden of proving their innocence once accused and would set a standard of proof (the “business necessity” test) that would be impossible to meet. And it would entice plaintiffs to litigate by making them eligible for multi-million-dollar damage awards and making it easy for them to win. They wouldn’t even have to say that any specific discriminatory action had been taken against them. Statistical disparity would be enough. (Naturally, Congress itself would be exempt.)
The bill’s principal author, Ralph Neas, the executive director of the Leadership Conference on Civil Rights (a white Republican male), put something in it for everyone. The Lawyers Committee for Civil Rights under Law got language calling for proportional racial representation and the business-necessity standard. The Women’s Legal Defense Fund was pleased with the big monetary awards. And the NAACP Legal Defense Fund was delighted to have the employer presumed guilty. Mr. Neas even remembered the lawyers, ensuring that they would get paid (by employers) even when plaintiffs didn’t collect. (Senator Kennedy and Mr. Neas have worked together before, most notably spearheading the campaign against Robert Bork).
The upshot is that the only way for employers to protect themselves from endless litigation would be to hire along strict racial quotas. Leading academics in industrial psychology concur. Even though their profession profits monetarily from increased government regulations, 35 top industrial-psychology professors sent senators a letter in March on the subject of the test that makes business necessity “the only justification for job qualifications that contribute to racial imbalance. They called the test a technically infeasible, subjective standard which the psychological profession and employers cannot meet or even define.”
The bill poses a danger to education, too. The Los Angeles Unified School District sent senators a letter noting that the “completion of formal education requirements, although desirable, clearly is not ‘essential for effective performance’ for the vast majority of occupations. Thus formal educational requirements would be among the first casualties. . . . The practice of considering those aspects that relate to exceptional performance will, for the first time, be indefensible and, ultimately will be illegal.”
The Civil Rights Bill would, for the first time in U.S. history, close the courthouse door to an entire group of people — white males. Under this bill they would find it effectively impossible to challenge court-ordered affirmative action. Indeed, an amendment was offered by Sen. Orrin Hatch to give everyone the right to sue for discrimination regardless of race, but the Senate Labor Committee rejected it.
With 40 co-sponsors, the Civil Rights Bill has an excellent chance of passage. In a typical Democratic maneuver, Senator Kennedy has already begun making cosmetic changes to the proposal to further undercut the opposition. Although the White House has been holding out on the Kennedy proposal itself, it has unwittingly encouraged such efforts by conceding that two of the recent Supreme Court decisions were wrong and having civil-rights legislation introduced to overturn them. Ted Kennedy’s greatest victory may be to push the Republicans into their familiar old corner: the same, but less.