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Tuesday, August 23, 2005

John Roberts: Racism and Sexism Could Get Their Own Seats on the Supreme Court

50,000 pages from John Roberts' time as a lawyer in the White House counsel office for Ronald Reagan have now been released. In my first post on Roberts, I explained that his words and actions showed he did not believe in the Constitutional right to privacy. In my second post, I examined the initial set of documents released by the Reagan library. I argued that his manipulation of the law to help corporate polluters, his references to an "abortion tragedy" and his comparison of Republican Congresswomen to Communists made him far too extreme for the Supreme Court. Today I will discuss the blatant racism and sexism that pervades the writings of John Roberts. These views alone provide the moral and legal bases for a filibuster.

I. Radical Racist

Two underreported remarks made by Roberts prove that he is a racist. The first is a comment he wrote for Reagan while anticipating an interview with a Spanish newspaper: "I think this audience would be pleased that we are trying to grant legal status to their illegal amigos." The term "amigo" is being used here as a racial epithet. He's not referring to any other Spanish words. He's not referring to anything that these groups call themselves. He is simply referring to a Mexican American group and inferring that they refer to undocumented immigrants as their "amigos." It may be hard for some to see the racism here; perhaps if Roberts referred to "granting legal status to their homies", the racism would be easier to spot. Regardless, a term like this has no place in a legal document fit for review by the President of the United States.

The second racist remark can be found scribbled in the margins of a proposed executive order banning some kinds of economic support for the white apartheid government of South Africa. Knight Ridder reports that "Roberts wrote "minority set-aside?" next to a passage that encouraged U.S. government agencies to pursue business with South African companies that had at least 50 percent black ownership."

The implications of this scribble are huge. First, Roberts apparently considers a program of encouragement to be a set-aside program. The word "encouraged" means that there will be no formal requirements and hence no set aside. Second, Roberts apparently considers minority set-asides to be a bad thing. I disagree, but then again that is the standard Republican stance which in and of itself is not radical. The third, and by far the most important, implication is that Roberts considered blacks to be minorities in South Africa. Perhaps he had no idea what the term "minority" meant, but even I knew in the 4th grade that blacks are the majority in South Africa. The program to which Roberts is objecting to merely encourages us not to do business with anti-capitalist racists and rather to do business with companies that more accurately reflect the South African population. This was a common sense approach adopted by the left and right; for Roberts to oppose it makes him an extreme radical of the first degree.

I've already discussed Roberts' limited view of the commerce clause which, in turn, provides the basis for his limited view of federal power. He just doesn't see the courts as an agent of equality. His selective reading of the Constitution rears its ugly head again regarding discrimination. Roberts persuaded the White House to cut a line referring to the "fundamental right to be free from discrimination." He said that "there of course is no such right." Discrimination is one of the clearest rights we all have which are not specifically listed in the Constitution. Society depends on a fair, equitable administration of government. To deny that is to deny our humanity. Roberts again stakes out the most radical position available.

I will now swiftly obliterate this modern conservative notion of Constitutional"originalism" or "constructionism". George W. Bush and the Federalist Society often speak of this theory as the "correct" way to read the Constitution. Their idea is that the only rights we have are what are listed in the Constitution, despite the fact that the 9th amendment says that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people". Since"originalists" want to keep things as they were at our nation's founding, it would be helpful to know what the founding fathers believed. Madison, the original Federalist, said that:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against."

Madison is clearly discussing the potential for people like the Republicans to one day claim that the only rights we have are those listed in the Constitution. As Madison's words clearly indicate, the founders felt exactly the opposite; this fear nearly prevented a Bill of Rights from being written.

II. Scandalous Sexist

Roberts despises any attempt by the law to rectify inequalities based upon sex. Roberts called a statute "a staggeringly pernicious law codifying the anti-capitalist notion of `comparable worth.'" Comparable worth is a way of insuring that men and women receive comparable pay for comparable work. This is no mere policy goal; the law of the United States under The Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 mandate that employers must pay men and women equally. The law in question that Roberts was railing against was a statute designed to ensure that government employees were being paid comparable wages for comparable work. Countless studies proved that female dominated occupations paid less than male dominated occupations even when the "comparable worth" of both occupations was identical. Comparable worth theory would require the government to study just how much "worth" each job has and then pay people according to that worth. Without using a comparative worth doctrine, the government just pays people "the going rate." If secretaries are mostly women, and women have been discriminated against over the years, then secretaries are going to get paid less than they deserve based upon that discrimination.

The right wing argues that it is impossible to determine the actual "worth" of a job. The free market, as they see it, is the only accurate way to determine a job's worth. Of course, this requires a leap of logic on the Republicans part -- that a free market for labor exists. The reality is that the labor market is hardly a "free market". Discrimination over decades has lowered the expectations of all women in regards to pay. Employers know that women exist in a separate labor market from men and can freely pay them less. One justification is that "It's the way it's always been." This creates a massive market inefficiency. Employers are harming themselves and their businesses by artificial discrimination. Most of them continue in the practice because of pressure of white male management, discrimination's role as an accepted business practice and fear of alarming investors.

Indeed, discrimination, not comparable worth, is an anti-capitalist notion because it undermines the market and creates inefficiency. Comparable worth is an attempt to correct the inefficiencies that result from sexism. In that way, it is an ultra-capitalist notion bent on restoring the free market and eliminating wasteful inefficiencies.

Roberts wrote documents supporting the Reagan administration's stance against the Equal Rights Amendment. The ERA would have guaranteed women equal rights as men; such a mild piece of legislation shouldn't have been so impossible to attain. Roberts wrote that "Any amendment would ... override the prerogatives of the states and vest the federal judiciary with broader powers in this area, two of the central objections to the ERA."

Roberts wrote that many of the legislative initiatives to stop sex discrimination "are themselves highly objectionable." "Highly objectionable" is just another way of phrasing the old conservative propaganda line: reverse racism. The idea that men actually get hurt by a leveling of the playing field is ludicrous. In practice, change is incremental. Further, if we agree that discrimination benefits men, then that benefit is unjust enrichment. There is nothing "highly objectionable" with eliminating any kind of unjust enrichment. If Roberts believes that people should have access to more rights and privileges just because of their genitals, then he fundamentally misunderstands right and wrong.

In addition to inserting racist remarks into his legal work, Roberts also managed to work in some outright sexism as well. The AP reports: "An administration official nominated an aide who had been a teacher but then became a lawyer. Roberts signed off on the nomination, then wrote: 'Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide.'"

This reflects an outdated view of gender roles that places men in the workforce and women in the home. Roberts could have just attacked lawyers and not been sexist by substituting the word "teacher" for "homemaker". He didn't because his point was not to attack lawyers but to attack the feminist movement: to Roberts, women entering the workforce is bad for society. How can we expect this man to do anything for women's rights?

Roberts' racist and sexist remarks indicate that he thinks little of the American judicial system. He sees no problem inserting hateful remarks in documents produced by taxpayer funds. Roberts is insulting the integrity of our beautiful legal system by using it as a mouthpiece for ignorance and hate. There is no place for crass words on the Supreme Court.

III. Who is this man?

Since John Roberts is likely to play a huge role in human history, it's worth examining his personality. Judges are humans, not machines, and they need to keep in mind their humanity when they sit down to write an opinion. Roberts’ home was Long Beach, Indiana. Today the town is 98% white; it has been that way since Roberts’ childhood. As late as the 1940s, Long Beach banned home ownership to non-whites and Jews. Many homes had “white only” property covenants even during Roberts’ childhood.

Roberts attended an all-male, Catholic boarding school, La Lumiere, where the subjects of race and sex rarely came up. La Lumiere didn't even admit its' first black students until 1970; Roberts graduated in 1973. Roberts' graduating class was 93% white. Clearly John Roberts led a sheltered upbringing in a semi-racist town that must effect his views in some way. Insulated white people just have no idea what kinds of issues women and minorities must deal with.

In addition to a sheltered childhood, Roberts has been associated with questionable company as an adult.The Bush Administration has refused to release any memos that John Roberts wrote while working as deputy solicitor general for George H.W. Bush. And just who was Roberts' boss while working at the solicitor general's office? None other than Kenneth Starr. Your friends reveal a lot about who you are, so Starr's questionable commitment to the rule of law is worth noting. Starr's Whitewater investigation of President Clinton wasted millions of taxpayer dollars. Starr flagrantly disobeyed the law and exceeded the power granted to him as the Special Counsel. Starr's inquiry was to be limited to the Whitewater investigation. Feeling pressure from the vast right wing conspiracy, Kenneth Starr exploited his position as Special Counsel to delve into every single aspect of the Clintons' lives. Although the corporate media has buried this fact from most Americans, it cannot be forgotten that the Republicans used Whitewater, a phony real estate scandal, as an excuse to probe Bill Clinton's sex life. Starr is the epitome of an activist judge.

Finally, it's worth noting that hard right conservatives are downright giddy about Roberts. Yesterday I detailed Pat Robertson's insanity. Here's what Pat Robertson thinks about John Roberts: "This man is superbly qualified. He has personally litigated 39 cases before the Supreme Court. He is a distinguished jurist and one of the most highly-regarded judicial scholars in America. When you look at the life of this man and his measured approach to the law, his confirmation should be assured."

IV. What Will the Democrats do?

Relatively conservative California Senator Dianne Feinstein is talking tough about Roberts. As the only woman on the Senate Judiciary committee, she apparently realizes she has an obligation not to go down in history as the woman who sold out women’s rights. Feinstein said “I happen to feel that it would be very difficult for me to vote yes on a nominee I thought would overturn Roe vs. Wade.” Not quite “I won’t vote for someone who would overturn Roe”, but close enough.

Senator Boxer has been more clear than Feinstein in her opposition. She called a vote for Roberts “impossible” and that "[h]e's going to have to talk about the right to privacy…he can't say, 'Gee, I can't talk about it.' No." The idea that the right to privacy will come up at some point is a hopeful sign since this is a dealbreaker on the Roberts nomination.

Early signs point to a measured approach by the Democrats. Party leaders have indicated that they will attack Roberts' sexist and racist views rather than prod too far in "controversial" subjects like abortion. The idea is that Roe is not really threatened because the only votes against it on the current court are Rehnquist, Scalia and Thomas. This is a fundamental miscalculation. First, the right to choose must be vigorously protected because the American people are on our side. Second, the selection of Roberts will likely not be the final nomination that George W. Bush will make to the Supreme Court. Roe is threatened by any young anti-choice Justice.

Still, it’s entirely unclear if the Democrats are serious about contesting Roberts’ nomination. The wait and see approach of the party seems to indicate that they will not filibuster unless something new comes out during the confirmation hearings. On the other hand, it’s likely that some group of Democrat Senators, perhaps Boxer, will filibuster Roberts’ for his opposite to Roe. Getting the requisite 41 Democrats to uphold a filibuster is a far more difficult task.

This is a very easy decision for the Democrats and the fact that it is so hard for them to make is a bad sign for the party. The Democrats have the power to prevent Roberts from joining the court. In fact, it’s their only power to do anything to stop the Bush agenda. Recent polls show the American people are heavily against Bush at this point. The Democrats need to use the Roberts nomination as an opportunity to open the entire debate on the Bush Presidency. The Senators need to ask Roberts questions about issues of Presidential powers, his work for corporate polluters, the Iraq war and his own racist statements. Ultimately, the Democrats need to stop Roberts based on anti-choice views. Every recent poll indicates that the vast majority of Americans support the right to choose. This is a fundamental right which is far more important than the vast majority of bills that come to Congress every year. The American people care about this deeply and will punish the Democrats for protecting it.

The Democrats win on all these issues. We are right both morally and politically. The Supreme Court nomination hearings are just the kind of dry, factual, heavily politicized, non commercialized, political information opportunties that Americans rarely get anymore. It’s a perfect sounding board for the Democrats to take the offensive and call out the Bush Administration’s radical policies. Choosing a radical who will undermine the rights of women and minorities exemplifies Bush’s hubris. At 50 years old, Roberts presents the opportunity for the morally bankrupt policies of the Bush administration to continue on several decades into the future. We must fight this impending evil.

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