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Roberts, politics, and truth

I wanted to call to our readers' attention the recent exchanges between professors Epstein and Presser on the Roberts nomination. Over the last couple of days, there's been more back-and-forth, this time largely concerning how worried we should be over the "smear attacks" of People for the American Way and other activists intent on derailing the nomination.

I generally tend to agree with Professor Epstein that Roberts's nomination looks to be in good shape, and that he doesn't present the avenues for attack that were available against Judge Bork. That having been said, there is some evidence to support Professor Presser's concern about the extreme levels of vitriol--and, indeed, deception--that some interested parties are willing to embrace to further their political ends.

I was most taken aback when I saw today's column in USA Today by DeWayne Wickham. For Wickham, everything is racial, and I rarely find his analysis insightful, but today's column sinks to new lows. Wickham compares the willingness of Democrats in the "Gang of 14" to compromise and not engage in filibusters of judicial nominees absent "extraordinary circumstances" to the "Compromise of 1877." As students of presidential history will recall, the 1876 Hayes-Tilden election made Bush-Gore look simple in comparison. Tilden had won the popular vote but four states' returns were contested. Ultimately, an ad hoc commission ruled for Hayes, on a one-vote partisan split, but Senate Democrats threatened to filibuster until Republicans promised a deal: end Reconstruction, and pull federal troops out of the South. The sorry consequence of that compromise was another 90 years' de jure discrimination against the very class of persons that hundreds of thousands of Americans had lost their lives to free.

But what does this have to do with Roberts? Well, Wickham claims that Roberts' ascension to the Court would end the "Second Reconstruction," which began with the Civil Rights Act 41 years ago. Sound far fetched? Well, it does to me, too. But Wickham goes on even further with his analogy and makes one wonder if he places any value on truth whatsoever.

You see, Wickham compares Roberts's appointment to that of Lucius Lamar, who served as Supreme Court Justice in an undistinguished five-year term from 1888 until his death in 1893. Lamar himself was a controversial nominee because he had resigned his seat in Congress in 1860 to serve in the secession convention for his native Mississippi.

But Lamar's Supreme Court appointment had nothing to do with Hayes-Tilden or the Compromise of 1877. Like his cousin-in-law James Longstreet, under whom he had served in the Civil War, Lamar ventured back into postwar public life and was elected back to the U.S. House in 1872, four years before the Hayes-Tilden campaign. He was appointed to the Supreme Court twelve years after that, in 1888, by President Grover Cleveland.

Wickham strains to hold Lamar's nomination to be somehow responsible for Jim Crow, by noting that he voted with the majority in Louisville, New Orleans, and Texas Railway Co. v. Mississippi, 133 U.S. 587 (1890) (holding that the interstate commerce clause did not bar Mississippi from requiring "separate but equal" railcars, without considering any equal protection challenge), which Wickham says "set the stage for the high court's Plessy v. Ferguson decision, which made racial segregation legal for more than half a century."

What Wickham fails to mention is that Lamar was joined by 6 other justices in the Mississippi railway case. Lamar wasn't on the Court for Plessy. Ironically in light of Wickham's "argument," one of two dissenters in Mississippi, and the lone dissenter in Plessy, was John Marshall Harlan--the only remaining justice on the court who had been appointed by President Rutherford B. Hayes.

Wickham's suggestion that John Roberts is a radical reactionary who would turn back the clock to Jim Crow is ridiculous. The reality that Roberts may not give the civil rights "establishment" exactly what it wants--a salutary possibility, in my book--hardly warrants associating Roberts with a Confederate officer in an effort to conjure up fears among Wickham's uninformed readers. Our nation has a sordid racial past, but playing fast and loose with the truth in our nation's most widely read periodical is no way to move forward and address remaining inequalities and social dysfuntions that stem from that past. Unfortunately, such disregard for the truth in pursuit of political ends is just what our Supreme Court confirmation process has become.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.