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Compassion, continued

July 29, 2005 12:28 PM

I think I'd like to pick up Richard's "compassion" theme, and broaden our discussion with reference to others than Judge Roberts, to take a broader look at what his ascension to the High Court might mean. Richard has explored whether, as our mutual friend Geoff Stone seems to imply, the left has some sort of a corner on compassion; he has concluded that it does not, and has touched on his favorite topic of property rights. Implicit in Richard�s approach, I believe, is the idea that we demonstrate compassion by protecting property rights, and that is surely what the framers believed. I share the good paleoconservative sentiment, but I thought I might touch, for the moment, on a different topic, now beginning to surface in the discussion of the "document dump" regarding Roberts�s various memoranda in the Reagan Library and elsewhere.

As a young government lawyer, probably at the bidding of superiors, Roberts appears to have drafted memoranda opposing busing to achieve racial balance, and perhaps attacking race-based remedies generally. Because much of the base of the Democrats now consists of racial and ethnic minorities, particularly African Americans, and because African Americans have generally been thought to be the beneficiaries of affirmative action, it is quite possible that Democrats in the Senate, playing for the approval of their base (as has become the custom in judicial confirmation hearings), may use these early memoranda of Roberts's to try to deny him confirmation. Their strategy may be to paint Roberts as hostile to minorities now because he advocated policies favored by minorities then and now. Setting aside the question of whether these memos really reflected Roberts's views, since he may simply have been asked to prepare arguments that he was not necessarily supposed to have embraced himself (this being the job of a lawyer, after all), it would be wonderful (if unlikely) if, for a change, we actually debated whether affirmative action actually helps or hurts those for whose benefit it was designed.

Curiously, the Constitutionality of affirmative action turns out to be a red herring and probably a closer question than most imagine, because the record is ambiguous. Some of our brightest Justices (the first John Marshall Harlan comes to mind) claimed that we have a "color-blind Constitution," but racially-conscious remedies were being meted out by Congress closely contemporary with the Fourteenth Amendment, and this suggests (as Stephen Siegel has pointed out, 92 Nw. U.L. Rev. 477 (1998) (PDF)) that we "original understanding" types might have to conclude that there is no Constitutional bar to affirmative action. Nevertheless, the current Federal legislative strategy is to implement a color-blind Constitution (as has been done, for example, with prohibitions on federal funding for schools that discriminate on the basis of race--a statutory point blithely ignored by Justice O�Connor in her decision upholding racially-conscious remedies at the University of Michigan law school), and that strategy may actually hold more promise for improving the lot of racial minorities than affirmative action did. One hopes that a Justice Roberts may understand that, and that he might, enlightened by writing such as that done recently by Abigail and Stephen Thernstrom (perhaps our most astute and subtle critics of current race-based remedies), offer more compassion and hope than Justice O'Connor did.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.