Racial Justice

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AUGUST 15, 2005

Racial Justice

Conservatives had lots of reasons to like John Roberts's nomination
to the Supreme Court. But the one they cited most eagerly was that
the nominee, barring some unforeseen revelation, was neither a
woman nor a minority. David Brooks praised President Bush for
"mov[ing] beyond the tokenism of identity politics." National
Review's Jonah Goldberg was relieved that Bush had "tagged a plain
old really smart white guy." "[B]y not worrying about walking out
to the podium last night accompanied by a white male," William
Kristol concluded, "Bush did something important and courageous."At the time, the glee with which conservatives greeted Roberts's
white male- ness fell into the category of slightly weird but
hardly worth a second thought. In retrospect, it was rather
telling. To the extent that Roberts's nomination has been defined
in the early going, it is civil rights issues that have defined it.
That has, in turn, produced two reactions on the right. On the one
hand, conservatives have continued to warm to Roberts the more they
learn about his Reagan-era writings on civil rights. But these
discoveries have also created a gnawing, if not quite urgent, sense
of anxiety among Republicans--and rightly so.

Roberts comes across as nothing if not conservative in the thousands
of pages of documents he wrote as a Reagan-era legal adviser.
Roberts favored a highly restrictive interpretation of the Voting
Rights Act. He concluded that Congress had the authority to pass
so-called court-stripping legislation in order to prevent courts
from imposing busing as a remedy for segregation. He took a dim
view of a Justice Department decision granting restitution to
people discouraged from applying to jobs for reasons related to
race. He argued against an affirmative action program on the
grounds that it led to the hiring of unqualified candidates.

In the early '80s, Roberts's positions on these issues were not only
popular among conservatives, they were central to what it meant to
be a Reaganite, both politically and ideologically. The
conservatism of the era was very much a reaction to the perceived
liberal excesses of the 1960s and 1970s, particularly on matters of
civil rights. Ronald Reagan won states like New York, New Jersey,
Michigan, and Pennsylvania thanks largely to the resentment that
blue-collar, white Democrats harbored toward welfare, busing, and
affirmative action. Meanwhile, the '80s saw elite universities
churn out hoards of conservative ideologues radicalized by the
political correctness they felt pervaded their campuses.
Northwestern University Law Professor Steven Calabresi has said he
founded the Federalist Society, the conservative legal organization,
to counter liberals' dominance at Yale Law School, where he was a
student in the early '80s.

But, while conservative elites still harbor these resentments,
things have changed among voters. Bill Clinton helped defuse race
as a political issue across the Northeast and Midwest when he
signed welfare reform in 1996. Around the same time, race was
creating political problems for the GOP. A Wall Street Journal poll
found that 66 percent of Americans thought the GOP was intolerant.
Republicans began suffering defections among Sunbelt Latinos and
moderates nationally thanks to the punitive cast of their
immigration and welfare policies.

The coup de grce came when then-Governor Bush, partly as a
concession to political reality and partly as a result of his own
personal decency, self- consciously fashioned himself as a new,
tolerant brand of Republican. Bush has largely repudiated appeals
to racial resentments. He has proposed instead to liberalize
immigration and has scrupulously practiced affirmative action
within his own administration. While the Reagan/Bush I/Newt
Gingrich coalition largely repelled minorities with its
preoccupation with race, the Bush II coalition directly enlists
socially conservative blacks, Latinos, and women (albeit in a new
crusade against gays).

In this context, it's hard not to see Roberts's memos as a political
liability. Conservative bloggers have spent much of the last two
weeks defending the nominee's individual positions--often with
justification. A careful reading of the memos doesn't evoke the
mind of a racist. It evokes a principled, if rock-ribbed,
conservatism--someone devoted to the belief that government does
more harm than good when it relies on ambitious means to defend
civil rights.

But, collectively, the weight of his civil rights positions have the
effect of casting Roberts as someone out of step with the current
political consensus on race, or at least with the tentative peace
Bush's GOP has forged. And the GOP establishment knows it. In the
days since Roberts's memos began trickling out, administration
surrogates have mostly sought to distance Roberts from his own
paper trail. Asked about the memos, administration spokesman Scott
McClellan would say only that "the files that you're referring to
mostly are from about 20 years ago." South Carolina Senator Lindsey
Graham argued that Roberts was merely advising a "client": "I've
represented rapists, murder[er]s. ... You shouldn't hold it against
me the thoughts of my client." The few times the GOP has engaged on
substance have been to repudiate a position attributed to Roberts.
Last week, Kentucky Senator Mitch McConnell announced that,
contrary to popular opinion, Roberts had actually opposed
court-stripping. (Roberts opposed it in practice but believed
Congress had the power to do it.)

For Republicans, the risks posed by Roberts are the mirror image of
the risks posed by Robert Bork. Bork, with his shaggy hair and
condescending manner, was a tough sell in the Senate. But he posed
no long-term risk to a party that largely shared his views on civil
rights. Roberts isn't likely to encounter problems in the Senate.
But, in closing ranks behind him, Republicans risk handing
Democrats a political wedge. In 2004, Bush increased his share of
the black and Latino vote by roughly 2 and 6 percentage points,
respectively. Karl Rove believes this trend is the key to a future
GOP majority. Yet these inroads are fragile. As Deval Patrick, a
former Clinton civil rights official, said after Republican Party
Chairman Ken Mehlman apologized to the naacp for his party's
checkered racial past, "The Republicans have a lot to answer for."
If Rove's majority fails to materialize, we may one day look back
on Roberts as the reason why.\t

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