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Hard target

Politics | Liberals choose their weapon to attack nominee John Roberts

Issue: "Beyond hate speech," Aug. 20, 2005

Top of his class, Harvard Law. Universally acclaimed record in public and private practice. As an advocate before the Supreme Court, virtually peerless.

How do you smear a guy like that?

Supreme Court nominee John Roberts' glowing credentials temporarily stumped liberals and allied Democrats. But they quickly recovered. A blizzard of briefs, press releases, and media sound bites over the past two weeks gave shape to an emerging Democratic strategy: Paint Mr. Roberts as soft on civil rights.

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The nominee holds a "rather cramped view of the Voting Rights Act," Sen. Ted Kennedy (D-Mass.) said at a July 28 press briefing. Memos from Mr. Roberts' Justice Department years "certainly raise some questions in my mind about his commitment" to civil rights, the senator added.

Liberal groups quickly hopped aboard: "With every passing day, it is becoming clearer that John Roberts was one of the key lieutenants in the right-wing assault on civil-rights laws and precedents," said Ralph G. Neas, president of People for the American Way.

The central issue: the nominee's positions on Title IX, voting rights, busing, and affirmative action. In each case, Mr. Roberts has mainly favored "restrictive" interpretations that minimize federal meddling on issues of race and gender. Title IX, for example, bans sex discrimination in any education program receiving federal assistance.

In 1982, Mr. Roberts wrote that indirect aid (such as a student attending a school using a Pell grant) doesn't allow federal investigators to "rummage willy-nilly through institutions" to ensure blanket Title IX compliance. Other writings by Mr. Roberts show similarly conservative stands on race-based hiring quotas (he doesn't like them) and busing (which he called "intrusive" and "disruptive to the education of our children"). All of which is anathema to the left, which sees federal tinkering as the cure for America's past race and gender ills.

George Mason University law professor Nelson Lund isn't at all surprised that liberal Democrats like Mr. Kennedy would at least experiment with attacking the nominee on civil rights. "It's a standard liberal technique: Anybody who hasn't completely toed the line on the most extreme portions of the left-wing agenda is accused of being racist, or at least insensitive to minority concerns," he said. "It's one of their favorite tactics."

The tactic worked in 1987 when Democrats smeared appeals court nominee Robert Bork as an enemy of women and blacks. In 2002, they "borked" Mississippi Judge Charles Pickering by linking him with his state's racially difficult past-this though 81 Mississippians, including Democratic governors and black civil-rights leaders, wrote letters defending him as a champion of racial reconciliation.

A chief architect of both the Bork and Pickering defeats, Alliance for Justice president Nan Aron, now has Mr. Roberts in her sights. On Aug. 8, she issued a three-page brief detailing civil-rights infractions in the areas of voting, housing, corrections, abortion, sex discrimination, and affirmative action.

But at least two cases on Mr. Roberts' resume may torpedo her argument. In the 1996 Romer v. Evans case, he helped his firm perform pro bono work for a gay-rights group. The group sued to overturn a voter-passed initiative in Colorado banning anti-discrimination laws. In 1999, in Rice v. Cayetano, he argued on Hawaii's behalf in favor of restricting to people of native descent leadership of the Office of Hawaiian Affairs.

Both Romer and Rice have lately caused some conservatives to rethink Mr. Roberts' presumed conservatism. Ironically, the cases may also make it hard for Democrats to pigeonhole him as a retrograde apparatchik of the right.

Mr. Lund, meanwhile, said he would be surprised if liberal Democrats succeeded in borking John Roberts. In the GOP-led Senate, "the politics aren't quite right for it. The senators are going to be reluctant to latch onto this kind of smear campaign because it isn't likely to result in a Roberts defeat. My guess is they won't see the risks as being worth the rewards."

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