The New York Times editorializes today on the need to quiz Judge Roberts regarding his “views on important legal questions.”
I have already argued (here and here) that Roberts’s “personal views” are relevant only if one believes that all judges routinely convert their personal views into law, or that Judge Roberts lacks the integrity to keep from doing so.
But “personal views” aside, let’s look at what the NYT thinks Judge Roberts should be asked about civil rights:
In the Reagan administration, Judge Roberts fought for a very narrow interpretation of the Voting Rights Act that would have made it harder for blacks to be elected to office. He has been dismissive of other important civil rights protections, and may oppose most or all forms of affirmative action. What are Judge Roberts’s views on civil rights, including affirmative action?
The NYT assumes that the purpose of voting rights — indeed, the essence, the very nature, of voting rights — is to elect more blacks to office. Similarly, it — and the many liberals who agree — assume that the purpose, nature, essence of civil rights in general is to ensure that more blacks (originally blacks, now various but not all minorities) are admitted or hired or promoted or otherwise rewarded with something of value.
I believe the NYT’s view reflects and perpetuates a fundamental misunderstanding of the nature of civil rights. Properly understood, civil rights means the right to be free from discrimination based on race, creed, or national origin. It does not guarantee a right to elective office, or admission to college, or a job.
Clearly, discrimination did and would reduce the numbers of minorities admitted, hired, etc., but it is equally clear — except in the editorial offices of the New York Times and similar precincts — that an “underrepresentation” of minorities in various positions is not necessarily the result of civil rights violations.
John, do you happen to know what the current NYT editorial position is on “majority-minority” districts? As you (and your readership) know, redistricting plans that cram as many black voters into a single district as possible do result in more black representatives. They also result in more Republican representatives, as black voters who might have been part of city-surrounding districts in a race-neutral redistricting are instead sucked into the urban one to get the percentage up, leaving the other districts whiter and more conservative than they would otherwise be. If the choice is between more blacks in Congress or more and safer Republican seats, which way does the NYT jump? I don’t remember what they’ve last said on the subject.
I don’t recall. It’s conceivable that, in retrospect, the Times may think creating maj/min districts was a mistake since, as you say, it led to the election of more Republicans. But it is not really conceivable that the Times would have thought, or thinks now, that drawing districts in such a way (assigning voters to districts by race) as to elect the most number of blacks — the new purpose of the revised Voting Rights Act — violates any equal protection principle.
Greetings!
Since this is my first time visiting and commenting, let me begin by saying how much I enjoy your BLOG. Thank you John and Jessie.
John, you wrote-
I have already argued (here and here) that Roberts’s “personal views” are relevant only if one believes that all judges routinely convert their personal views into law, or that Judge Roberts lacks the integrity to keep from doing so.
Consider this, the fact that conservative Presidents nominate conservative Judges (and liberals nominate liberals) is in itself evidence that an individual’s personal views matter, and thus, warrant a thorough investigation. To suggest that any Supreme Court judge needs to be100 % impartial in reaching their opinion seems to me a bit disingenuous if not simple-minded. The very reason for the existence of laws and courts stems from the fact that people, by nature, do not share the same opinions and values. As human beings we are guided in our actins by our hearts and minds, and therein lies the rub; to assume that a Judge, no matter how wise they are or how much integrity they possess, is immune to this foible of human nature, is simply wishful thinking, or?
Having said that, I concur that the NY Times editorial in question, is at best, weak.
I look forward to your thoughts,
Peter K
Peter – Welcome! And thanks for your comment, especially (but not only) for its polite tone. Civility in disagreement should be added to the endangered species list, making it all the more welcome when it appears.
I also think your point is well-taken. Judges, after all are people, and people are not neutral ciphers. In fact, my point, which I no doubt could have expressed better, is precisely that the Senate should try to get a sense of in its hearings is what kind of person the nominee is, what sort of character he has, not what his “personal views” are. The question, as I see it, is not what his “personal views” are but whether he has the ability to rein them in, to cabin them, in determining what “the law” requires. To say this is not to imply that “the law” is clear, fixed, not subject to differing reasonable interpretations, but merely that it is distinguishable from one’s “personal views.”