Roberts Is Black Leaders' Reagan Deja Vu

Two weeks before Senate confirmation hearings on Supreme Court chief justice-designate John Roberts were scheduled to open, Roberts snatched a page from the playbook of his former boss, President Reagan, and refused to meet with the Congressional Black Caucus. Reagan's snub of the Caucus two decades ago was more than just presidential pique. During the Reagan years, black leaders were outcasts at the White House, and that most definitely included black Democrats. They, and civil rights leaders, fought back with an eight-year unrelenting war against Reagan's policies.

They blamed Reagan for gutting affirmative action programs, attempting to water down the Voting Rights Act and torpedoing school desegregation, and criticized his take-no-prisoners stance on the death penalty. As Reagan's legal counsel, Roberts was at the center of these bitter, and contentious civil rights battles. He gave key advice that helped shape the Reagan administration's legal philosophy on civil rights.

The Caucus is well aware of his past. And Roberts knows it. He refused to meet with the Caucus for the same reason Reagan did. Both feared that they'd be grilled on their civil rights records. They saw absolutely no political gain in letting their enemies take pot shots at them. But Roberts' refusal to meet is not just fear of reopening old sores. The issues that Reagan and civil rights leaders fought about two decades are still being hotly contested today. These issues will likely be dumped on the Court's plate during Robert's tenure.

If Roberts hasn't budged an inch from his earlier written opinions on affirmative action, the death penalty and voting rights, then the Caucus and civil rights leaders have deep cause for worry. In an August 1982 memo, Roberts claimed that race and gender should never be factors in employment decisions. That's still a thorny question that employers and civil rights leaders fight over, one that at some point the high court will have to decide.

In the case of the death penalty, Roberts filed a friend of court brief that held that states have enough safeguards to insure that innocent persons are not put to death. The exoneration of countless numbers of death row inmates through DNA testing and other evidence since then has blown that notion to bits. With more challenges to the constitutionality of the death penalty on tap for the court, it's crucial to know whether Roberts still thinks the death penalty is fail-safe.

The Voting Rights Act is an even more immediate issue. When the 1965 Voting Rights Act was up for renewal in 1982, Roberts fired off more than two dozen memos to Reagan officials. He demanded that minorities prove intent before the Justice Department filed voter discrimination suits. That muddied the water enough for Reagan to dilly-dally before ultimately backing the Act's extension. The Act is up for renewal again. Though Attorney General Alberto Gonzales pledged that Bush would back an extension of the Act when it expires in 2007, that hasn't convinced civil rights leaders that Jim Crow can't still make a comeback in the voting booth.

There's no direct danger that African-Americans could be disenfranchised. Voting rights are guaranteed by the 15th Amendment. Bush and the GOP-controlled Congress, though, could still renege on their promise to reauthorize the Act. They could knock out the Act's expiring key provisions that require that, in order to safeguard against discrimination, certain states, mostly in the South, get prior authorization from the Justice Department or federal courts before doing redistricting or district annexation, changing registration requirements or methods to qualify candidates, and holding at-large elections. If that happened, civil rights leaders would instantly mount a court challenge.

If the challenge wound its way to the high court, and if Roberts still thought that the crucial part of the Act he lobbied against was too far-reaching, then voting rights could be in serious jeopardy. The Caucus was well within its rights to seek to question Roberts face-to-face on his civil rights views. The high court under Rehnquist's tutelage was doctrinaire, contentious, and at times mean-spirited. It did everything possible to reverse the civil liberties, civil rights and gender gains and protections.

If Roberts is indeed the inflexible conservative ideologue that the Caucus and civil rights leaders suspect that he is, he could, as Rehnquist at times did, wreak colossal havoc on civil rights and civil liberties protections. He is relatively young, and he would have plenty of years on the court to do that. His decisions would profoundly influence, for good and bad, law and politics in America long after Bush's exit from the White House.

The Reagan administration's drumbeat attack on affirmative action and waffling on voting rights sent the huge signal that assailing civil rights was a prime goal of his administration. By refusing to meet with the Caucus and tell whether he still feels the same way about affirmative action, voting rights and other civil rights issues, Roberts sends that same signal again.

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