Tuesday, Apr 24, 2018
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A question for Roberts: Is the Constitution color-blind?

WASHINGTON - Like lots of journalists, I have sifted through the files from Supreme Court nominee John G. Roberts, Jr.'s memos as a Reagan Administration lawyer. It's a bit like panning for gold - or fool's gold, if you take the view that all the memos about busing, affirmative action, and "judicial restraint" add up to what we knew before the National Archives excavated these artifacts: that John Roberts in the 1980s was a conservative Republican.

But one memo caught my attention. Taken together with Judge Roberts' more substantive views - then and now - it suggests a line of questioning for the senators who will examine Mr. Roberts this week.

The context of the Sept. 15, 1982, memo to Attorney General William French Smith was trivial: talking points Mr. Roberts had prepared for Mr. Smith for an interview with another Reagan appointee, Clarence Pendleton.

Mr. Roberts wrote: "This meeting is simply a courtesy call so that you can meet President Reagan's appointee to head the Civil Rights Commission. Pendleton is a black attorney from San Diego, and former head of the San Diego office of the Urban League."

Mr. Roberts' memo later noted that "Pendleton generally agrees with our anti-busing and anti-quota initiatives. To the extent those areas come up, you should reiterate our commitment to the color-blind principle."

Am I the only reader of the memo who was struck by the fact that, in a memo celebrating the "color-blind principle," Mr. Roberts identified Mr. Pendleton as "a black attorney"?

Perhaps Mr. Pendleton was arriving in a group and Mr. Roberts simply wanted to be sure that Attorney General Smith extended his hand to the right visitor.

More likely, Mr. Roberts reflexively added a racial identifier because, well, that's the way he would have answered if Mr. Smith had sidled up to him in the hallway and asked: "Who's Clarence Pendleton?"

In these politically correct days, a young lawyer in Mr. Roberts' position would probably find a subtler way to tag Mr. Pendleton - say by calling him "a leader in the African-American legal community."

But even today, Americans, black and white, instinctively identify people by race ("Joe Smith? He's our new reporter, good guy, African-American"). We don't typically inject other ethnicities into our descriptions ("Mary? She's our new reporter; she's Jewish/Irish/Croatian"). In Mr. Roberts' language, we're anything but color-blind.

It would be a cheap shot to treat Judge Roberts' 23-year-old slip of the pen as proof that he was a racist or that he was hypocritical in arguing for legal "color-blindness" in opposing affirmative action programs.

Yet if I were questioning him I would say something like this:

"In a memo about 'color-blindness,' you describe a presidential appointee as a 'black attorney.' Does that usage not reflect your acknowledgement of the racial divide that existed then in American society and persists now? Witness the poll that suggests that two-thirds of African-Americans think the response to Hurricane Katrina would have been faster if the victims had been mostly white."

Next question:

"Without committing yourself on any case that might come before you, where do you come down on the debate about whether the Constitution, particularly the post-Civil War 14th Amendment, which requires states to guarantee 'equal protection of the laws,' allows some preferential treatment for African-Americans?

"As you know, some legal scholars insist, as did the Reagan administration when you worked there, that the Equal Protection Clause is color-blind and that laws that confer benefits on the basis of race are unconstitutional whether they disadvantage blacks (like the old Jim Crow laws) or whites (affirmative action programs at state universities).

"The court you hope to join has favored the color-blind view, and even when she voted to uphold racial preferences at the University of Michigan Law School in a 2003 case, Justice Sandra Day O'Connor strained to do so without abandoning the color-blind principle.

"In her opinion for five justices, she said the law school plan was constitutional under the 'diversity' test announced by Justice Powell in the 1978 Bakke case. Justice O'Connor wrote: 'We endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions.' She then noted: 'We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.'

"Judge Roberts, it would be interesting to know if, constitutional considerations aside, you think affirmative action will be necessary in 25 - now 23 - years to ensure something like proportional representation of African-Americans in institutions like the University of Michigan and Harvard, your alma mater. A lot of liberals do; so do neo-racists who believe blacks as a group are innately less intelligent than whites. Do you?"

If I were a senator, I also would ask Mr. Roberts what he thinks about an alternative argument for the constitutionality of affirmative action in higher education: not that it promotes "diversity" of ideas, as Justices Powell and O'Connor concluded, but that it is justified by the primary purpose of the 14th Amendment, which was to remediate the effects of slavery.

This alternative approach was offered in the Bakke case by Justice William J. Brennan, Jr.

"Government may take race into account," Justice Brennan wrote, "when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area."

"Judge Roberts," I would ask, "why wasn't William Brennan - you know, that Irish attorney - right?"

Michael McGough is an editor at large in The Blade's National Bureau in Washington.



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