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August 19, 2005
Dogs And Cats, Living Together

A news report on John Roberts and an editorial by Ted Kennedy in today's Washington Post has Bench Memos rightly up in arms today. Both breathlessly use general language and out-of-context snippets to paint Roberts as a women-hostile idealogue who would repeal the 19th Amendment if the Court had the power to do so. In fact, Kennedy's essay relies so much on generic assertions of his own opinion as fact that its incoherence renders it almost moot, even without the Bench Memos rebuttals:

Specifically, and contrary to the intent of overwhelming majorities in both the House and the Senate, it appears that Roberts proposed a very narrow and crabbed interpretation of the Voting Rights Act that would essentially eviscerate the meaning of that law. Fortunately, his view did not prevail. But if a nominee to the Supreme Court believes in such a strained and narrow interpretation of such a fundamental right, then I believe he is not qualified to serve in that important position. The information we have requested from the administration would give us a more in-depth understanding of Roberts's views on this key civil rights issue, and we are entitled to it.

Well, speaking of specifically, Kennedy never specifies the case on which he bases this supposed evisceration, nor does he provide Roberts' arguments, let alone any context at all about the situation. This makes it rather difficult to debate or rebut Kennedy, almost surely a purposeful strategy. Kennedy's rhetoric, in fact, sounds almost exactly like that he employed in his notorious hack job on Robert Bork.

Amy Goldstein, Jeffrey Smith, and Jo Becker get more specific -- and at the same time, less intellectually honest. After accusing Roberts of repeatedly trying to oppose womens' rights during the Reagan administration, it turns out that their major complaint consists of his argument against "comparable worth", a particularly stupid concept that grew out of the Equal Rights Amendment movement:

In internal memos, Roberts urged President Ronald Reagan to refrain from embracing any form of the proposed Equal Rights Amendment pending in Congress; he concluded that some state initiatives to curb workplace discrimination against women relied on legal tools that were "highly objectionable"; and he said that a controversial legal theory then in vogue -- of directing employers to pay women the same as men for jobs of "comparable worth" -- was "staggeringly pernicious" and "anti-capitalist."

Comparable-worth proposals did not mean equal pay for equal positions between men and women (considering seniority), something that Congress had already begun to mandate through federal legislation in the 1970s as part of its EEO regulations. Proponents of comparable worth wanted jobs, especially those with traditional gender gaps, to require arbitrary analysis to equalize pay. Nurses, for instance, should make as much as doctors, so the argument went, and teachers should make as much as lawyers.

It sounds nice, until the first obvious question enters your head: who determines this "comparable worth"? Why, the government does, silly! This notion that government should set wages rather than the marketplace itself has other names: socialism, communism, and others. It would have done the opposite of what the feminists wanted anyway; it would have perpetuated the gender gaps by removing the market incentives favoring the higher-priced jobs.

Roberts took the correct position in the 1980s, as history has shown. The comparable-worth issue died a well-deserved natural death as the decade wore on and more women entered male-dominated industries without the government mandating quotas and wages. Not even the Clintons thought comparable-worth policies to have any value. Now the Post wants to pillory Roberts for getting both the legalities and the politics of comparable-worth correct.

For once, the New York Times runs a more sane, less inflammatory look at Roberts from the exact same material. Todd Purdum and John Broder give a more measured analysis and determine that while Roberts obviously has his conservative point of view, he advised caution and restraint to the Reagan administration on a number of issues:

As a young lawyer in the Reagan White House, it was John G. Roberts Jr. who often found himself urging caution on his elders - including the president himself - in an effort to shield them from not only legal errors but also political blunders and public relations missteps, great and small.

Newly released documents from the Ronald Reagan Presidential Library reflect Mr. Roberts's repeated efforts to protect Mr. Reagan and his aides and supporters from some of their own most zealous instincts. He warned against excessive public presidential support for the Nicaraguan contra rebels. In 1984, he wrote a somewhat defensive note to his boss, the White House counsel Fred F. Fielding, arguing that it was all right for a presidential letter on minority business enterprise to speak of "encouraging government procurements," adding, "I do not think 'encourage' connotes anything in the nature of a set-aside or quota."

In 1984, Mr. Roberts objected to the proposed draft of a presidential campaign speech that would have had Mr. Reagan refer to the United States as "the greatest nation God ever created." Mr. Roberts wrote, "According to Genesis, God creates things like heavens and the earth and the birds and the fishes, but not nations." He added that the phrase was "a likely candidate for the 'Reaganism of the Week.' "

Like the thousands of pages of documents already released, the new files opened by the National Archives on Thursday show Mr. Roberts to be a faithful foot soldier in the conservative revolution that Ronald Reagan brought to Washington, embracing and echoing the administration's opposition to liberal programs like affirmative action and a controversial remedy for employment discrimination against women known as "comparable worth." But they also reflect his unwavering penchant for caution - and precision - in language and thought. He corrected misuses of the words "which" and "that" in draft White House documents. And in reviewing a proposed economic message in 1986 in which Mr. Reagan was to say, "I just turned 75 today, but remember that's only 30 Celsius," Mr. Roberts noted that 75 Fahrenheit is actually 23.9 Celsius.


The portrait that emerges from the Times analysis differs greatly than that of the Post's. It's almost enough to make one believe that Bill Keller may have been serious about changing the partisan tone of the Gray Lady earlier this year. Is that a sign of the pending Apocalypse?

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at August 19, 2005 7:32 AM

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» Kennedy and the WaPo Continue Their Hatchet Job On Roberts from A Knight's Blog
The Washington Post ran this article — not editorial, a “news” article — entitled “Roberts Resisted Women’s Rights.” Selected portions (read the whole thing!): Supreme Court nominee John G. Roberts Jr. consi... [Read More]

Tracked on August 19, 2005 9:10 AM

» WaPo editorial non-editorial: “comparable worth” = “women’s rights” from The Unalienable Right
The Washington Post mirrors a left-wing activist group talking point by portraying John Roberts’ opposition to quasi-Marxist “comparable worth” policies as opposition to “women’s rights.” (We previously discussed th... [Read More]

Tracked on August 19, 2005 11:02 AM

» Not comparable worth again?!?!? from SCSU Scholars
Hugh Hewitt mentions a Washington Post article on John Roberts' advice to the Reagan administration to oppose comparable worth measures, which the Post headline calls "anti-woman". It's worth remembering what the debate was, and worth discussing from... [Read More]

Tracked on August 19, 2005 12:10 PM

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