Robert Gordon, senior vice president of the Center for American Progress and former law clerk to Justice Ruth Bader Ginsburg, fires a shot at John Roberts in SLATE today, but it was a blank.
Roberts’ memoranda during the Reagan administration … could not say enough about the “the vital importance of judicial restraint in our democratic system,” mocking the “so-called ‘right to privacy.’ ” But during the very same period, Roberts, without irony, expressed admiration for a “color-blind jurisprudence” that would have sharply limited affirmative action.
Perhaps there was no irony because Roberts could find no general “right to privacy” in the Constitution — presumably that’s why he called it “so-called” — while believing that the 14th Amendment and the 1964 Civil Rights Act require government to act in a colorblind fashion.
If there is any irony to be found here, it lies in the fact that so many liberals have become so alienated from the “without regard” principle that they believe anyone who thinks courts should enforce equal protection, i.e., anyone who now believes what liberals used to believe, must be a raving judicial activist.
Examples abound. A good one is this recent exchange on the NewsHour With Jim Lehrer between Pepperdine law professor Douglas Kmiec and Georgtown law professor Peter Rubin, former clerk to Justice Souter and currently president of the American Constitution Society, “a progressive legal organization.”
Kmiec
Well, I think [Roberts] believes, as the Supreme Court itself has articulated, that race ought not to be a factor in public decision-making; that when race is used, other qualities that relate to merit and competition and the ability to do the work are set aside, and we ought to be focusing on the quality of work and on fair government contracting and not on giving preference on the basis of something that should be both legally and morally irrelevant.
Rubin
If Doug is right, this is going to be an awfully controversial nomination, because what he said is that race can’t be a factor in decision making. That’s what Doug said.
Yes, hard as it is for Rubin to believe, Kmiec actually said that Roberts believes that race ought not to be a factor in public decision-making.
And he said it without a trace of irony.
“Center for American Progress” … “a progressive legal organization” …
Can someone tell me the new meaning of the word “progressive”? Has it gone the way of words like “diversity” and “bad” — meaning the opposite or what they once meant?
Dom
It no longer means the party of teddy roosevelt.
Hilarious.
Also, note the difference between “ought not” and “can’t”.