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Lost in Translation

How the left's unsuccessful attempt to invoke the legal culture of the 1970s has led to an increasingly desperate effort to distort John Roberts's record.

12:00 AM, Aug 22, 2005 • By PAUL MIRENGOFF
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WHAT A PLEASURE it has been to read the excerpts from the Reagan-era memos of John Roberts served up by the mainstream media. First, they confirm Roberts' status as a solid conservative. Insisting, for example, that civil rights laws are about promoting a colorblind society, Roberts opposed racial quotas in hiring and promotion, court ordered busing of students, and congressional redistricting intended to create a pre-ordained number of "safe" seats for minority politicians. He denounced a legal theory propounded by radical feminists that would have allowed judges or bureaucrats to raise the pay rates for jobs held mostly by women on the pretext that these jobs were "worth" as much as totally different jobs held mostly by men. He agreed that Roe v. Wade constitutes a "tragedy," and that the free-floating right to privacy upon which the decision relies lacks constitutional grounding. He was upset by the extent to which unelected judges were attempting to remake society in accordance with their personal preferences, and willing to entertain the use of the Constitution's remedies for such judicial usurpation.

Substance aside, his memo excerpts read like an unusually perceptive and pithy blog. At times, they contain snark worthy of Roberts's most persistent conservative critic, Ann Coulter. A pompous congressman wants to convene a conference on power sharing between the executive and legislative branches? Roberts notes that such a conference occurred in Philadelphia in 1787, and suggests that someone show the congressman the "memo" this meeting produced. Feminists want to empower judges or bureaucrats to set wage rates for jobs throughout the economy? Roberts offers them a slogan: "From each according to his ability, to each according to her gender." And, like most good bloggers, Roberts provides more than just trenchant political commentary. He treats readers to his views on Michael Jackson (could be supplanted by Prince; Reagan shouldn't pander to him in any case) and Pete Rose (his .410 slugging percentage leaves him well short of true slugger status). Roberts even cracks a good lawyer joke.

Best of all, Roberts's memo excerpts remind conservatives of how much the landscape has changed since the early 1980s. In attempting to put Roberts's memos into context, the Washington Post labeled him "part of the vanguard of a conservative political revolution." In a sense this is true. Just as Reagan's foreign policy team sought to roll back, and ultimately topple, the Communist empire, his legal team hoped to overturn many of the doctrines established by the liberal Warren-era Court, and to appoint conservative judges who would pay more attention to the words of the Constitution and less to considerations of public policy.

It is quite misleading, however, to suggest that there was anything truly radical about what Roberts and his fellow insurgents attempted to accomplish. When Roberts wrote his memos, Republicans had won landslide victories in two of the previous three presidential elections based, in part, on denunciations of the liberal activism of the Supreme Court. And they were on their way to a third such triumph. Roberts's insistence on a colorblind society, his unhappiness with judicial short-circuiting of the political processes, his disagreement with Roe v. Wade, to cite just three examples, all placed him well within the political mainstream. If they made him an insurgent within the legal community, that's only because the legal culture (as defined by liberal law professors and judges appointed years earlier) was grossly out-of-step with the political culture. Part of the mission of the brilliant young lawyers in the Reagan administration, along with the nascent Federalist Society on college campuses, consisted of showing that this gap stemmed not from a superior understanding of the law by the legal elite, but from a power grab ungrounded in the words of the Constitution and the intentions of its framers.

THE SUCCESS OF THE REAGAN-ERA INSURGENTS is evident from the current reaction to the Reagan-era memos. Though Roberts's writings delight conservatives of a certain age and enrage leftists, they elicit yawns from just about everyone else. Despite breathless headlines from the Washington Post and doomsday pronouncements from used-up feminists and "civil rights" leaders, Roberts's derision of various liberal shibboleths has thus far failed to arouse the passions even of a critical mass of Democratic senators, much less the public. The unwillingness of the body politic to salute the anthems of the '70s left must be a painful experience for aging liberals--sort of like trying to explain to one's children why Easy Rider was a peak cinematic experience.

The left does not react well to sobering lessons of this kind. Hence, the final (though hardly unalloyed) pleasure conferred by the Roberts memo coverage: the left's self-destructive response to the public's common sense. When Roberts's own conservative words on the subject of abortion failed to stir any semblance of a backlash, the pro-abortion forces decided to "translate" them, reinventing Roberts as a supporter of violence against abortion clinics. The result? A deplorable NARAL ad attempting to associate Roberts with the bombing of an Alabama abortion clinic. The ad distorted Roberts's record in every particular. Ultimately, under pressure from more scrupulous abortion supporters, NARAL withdrew it.

Before long, though, the left was back to its old tricks. Next up was a translation of Roberts's condemnation of the theory of "comparable worth"--which would have allowed judges or bureaucrats to set pay rates based on a finding that, for example, the work of female file clerks is "worth" as much as male truck drivers--into opposition to equal pay for equal work. Indeed, this act of mistranslation has been the work not only of far-left advocacy groups, but also of mainstream media outlets such as USA Today, the Washington Post, and (almost inevitably) National Public Radio. However, as Michael Barone, among many others, has explained, the essentially socialist approach of government dictated wage rates based on comparisons of "apples to oranges" job bears virtually no relation to the well-accepted doctrine of paying male and female employees equally for equal work. Indeed, the Clinton administration rejected the comparable worth doctrine as roundly as the Reagan administration had.

The left's almost daily cry of wolf in response to the memo excerpts makes it increasingly uncomfortable (and, one hopes, difficult) for Democratic Senators to continue to dance to the outdated tunes of groups like NARAL, NOW, and People for the American Way. The mainstream revolutionaries of the early Reagan years helped create the conditions that brought this transformation about. Yet, as much success as they had in reshaping the legal culture, they largely failed to reshape the Supreme Court. With the first nomination of a member of that vanguard as the replacement for the first justice selected on its watch, we now may finally be on the road to accomplishing this most important component of that vanguard's mission.

Paul Mirengoff is a contributing writer to The Daily Standard and a contributor to the blog Power Line.