Illuminating piece by the Weekly Standard’s Duncan Currie examining SCOTUS nominee John Roberts’ judicial record on civil rights issues.  From “In John Roberts’s America…The civil rights laws mean what they say”:

[…] when the Bush administration released reams of papers from Roberts’s 1981-82 tenure as a special assistant to Attorney General William French Smith and his 1982-86 stint in the White House counsel’s office, [Liberals] found a new angle: civil rights. Politically, the tactic seems shrewd: Paint Roberts—the white, Harvard-educated son of a Bethlehem Steel exec—as insensitive to the historic plight of women and blacks. But Kennedy & Co. are working with pretty thin material.

The brief against Roberts is that he was “anti-civil rights” on four issues: Title IX, affirmative action, busing, and voting rights. Critics have tried to tease out his views from internal Reagan-era memos–a thorny task, since Roberts mostly was promoting the policies of the administration he worked for. That caveat aside, the case against him boils down to this: In memos to his superiors, he opposed an expansive interpretation of Title IX that had no rooting in the original law; he opposed racial preferences; he opposed mandatory busing; and he opposed race-based gerrymandering. Let’s take each in turn.

Title IX of the Education Amendments of 1972 was born with a simple purpose: to ban sex discrimination in “any education program or activity receiving Federal financial assistance.” Yet a debate soon arose over its limits. If a school benefited indirectly from federal aid–through, say, tuition grants to some of its students—was the entire institution subject to Title IX? Or did the law apply only to the specific program? The Reagan Justice Department concluded the latter. “Under Title IX,” Roberts wrote in a 1982 memo to Smith, “federal investigators cannot rummage willy-nilly through institutions, but can only go as far as the federal funds go.”

In the landmark 1984 case Grove City College v. Bell, the Justice Department argued for that interpretation of Title IX. A Supreme Court majority that included Justice Sandra Day O’Connor concurred. The receipt of federal aid by students “does not trigger institutionwide coverage under Title IX,” the Court held. To be sure, Congress deemed otherwise. In 1988, it broadened the reach of Title IX–over President Reagan’s veto—to stipulate “institutionwide coverage.” But in his 1982 memo, Roberts’s counsel was in tune with the 1972 legislation as affirmed by the High Court.

On racial matters, Roberts boasts a “liberal” paper trail in the original sense of the term: a robust devotion to equal opportunity and colorblind justice (though at least one position has caused some conservatives concern, about which more later). During the early 1980s, he backed Reagan’s “anti-quota principles” and cast a skeptical eye on “the purported need for race-conscious remedies such as busing and affirmative action.” Racial set-asides were fatally flawed, Roberts wrote in 1981, because they obliged “the recruiting of inadequately prepared candidates.”

“Under our view of the law,” he went on, “it is not enough to say that blacks and women have been historically discriminated against as groups and are therefore entitled to special preferences.” The Supreme Court agrees. “An amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota,” it held in Richmond v. J.A. Croson (1989). Six years later, in Adarand Constructors v. Pena, the Court insisted on “strict scrutiny” as “the proper standard for analysis of all racial classifications.” Writing for the majority, Justice O’Connor stressed that affirmative action programs “must serve a compelling governmental interest, and must be narrowly tailored to further that interest.”

If Democrats wish to press Judge Roberts on racial bean-counting, they won’t get much succor from public opinion. The same holds for mandatory busing to achieve racial integration in public schools, a policy that has remained, as the historians of race relations Stephan and Abigail Thernstrom write, “profoundly unpopular with the general public.”The Justice Department should of course “guard against impermissible discrimination,” Roberts counseled Attorney General Smith in a May 1982 memo. But it should eschew “intrusive remedies” such as busing, which had proven “so disruptive to the education of our children.” He described busing not just as fruitless but as counterproductive. He advised White House counsel Fred Fielding in February 1984, “the evidence [shows that] busing promotes segregation rather than remedying it, by precipitating white flight.”

It’s hard to see how a rehash of the struggle over busing can tarnish Roberts’s chances for confirmation. But what about a fight over the Voting Rights Act? “Now is not the time for a Court to be rolling back the right to vote,” Democratic National Committee chairman Howard Dean said in a statement last week, calling the Roberts pick “deeply troubling” in this regard. The questions raised here are a bit murkier. When the Voting Rights Act first passed 40 years ago, its primary purpose was to enfranchise southern blacks and enforce the 15th Amendment. And it did so, with remarkable alacrity. By the early 1970s, blacks in the former Confederacy were registering and voting at record levels.

Some white officials in the Deep South resisted this revolution through electoral sleight-of-hand, tinkering with districts and voting procedures. Their efforts to blunt black political power compelled Congress to revamp the Voting Rights Act in 1970, 1975, and 1982. The emphasis soon shifted from protecting the rights of black voters to increasing the number of black officeholders–as Roberts later put it, from “equal opportunity” to “equal results.” By the time he joined the attorney general’s office, civil rights lobbyists were, in effect, battling for proportional racial representation.

The 1982 debate hinged on just that issue. In Justice Department memoranda, Roberts warned that a House bill to amend the Voting Rights Act would “establish a quota system for electoral politics, a notion we believe is fundamentally inconsistent with democratic principles.” He favored an extension of the law, but not “a system of proportional representation based on race or minority language status.” The law was working, Roberts noted, and “if it isn’t broken, don’t fix it.” But the “fix” was in, as it were, and Congress retooled the Voting Rights Act to bring “results” under the rubric of “discrimination.” Looking back, Roberts was vindicated: The 1982 bill did indeed midwife racially gerrymandered districts.

The one item in Roberts’s portfolio that has raised some conservative eyebrows is his role in the 2000 case Rice v. Cayetano. By a vote of 7-2—the two dissenters being Justices John Paul Stevens and Ruth Bader Ginsburg—the Supreme Court struck down a Hawaiian law that restricted voting rights for Office of Hawaiian Affairs trustees to people with “Native Hawaiian” blood. According to the Court, Hawaii’s racialist statute clearly violated the 15th Amendment.

Roberts, then in private practice, argued the state’s case before the High Court, and later said the ruling “could have been a lot worse.” If there is a stain on his civil rights record, it may be this abandonment of colorblindness.

There are two ways to read this last bit— either Roberts’ positions on racial politics have “matured” (as progressives are wont to suggest), or else he was simply advocating strongly for his client, the State of Hawaii—but I tend to think it’s the latter, given that Roberts seems quite capable of reading the Constitution, which from an apolitical perspective is quite clear, it seems to me, that race and gender-based discrimination (and this goes in either direction) is unlawful; consequently, Roberts, I suspect, will eschew dodges like the one O’Connor used to perpetuate race-based affirmative action and will courageously (given the current political climate built on PC pressure and identity politics) base his rulings on the text of the Constitution and not on his ability to finesse that text in order to do what he personally believes is either poltically expedient or ethically righteous.