Roberts has several legitimate defenses. The first is that a few classless cracks in 38,000 pages of documents isn't all that bad. Reporters who needed a story connected some dots and turned a handful of dumb comments into front-page headlines. These news stories tend to conflate flippant cracks with serious policy critiques, which isn't entirely fair.
A patently bad defense, however, offered by one of Roberts' staunchest supporters, Prof. Douglas Kmiec, is that most of the proposed policies Roberts disparaged eventually "were largely rejected as unwise by policymakers." So what? The issue isn't the policies themselves but the tone. Carrie Lukas of the Independent Women's Forum similarly believes that proving these policies were dumb is enough to turn Roberts a sensitive new-age guy. I'm not buying.
Then there's the Phyllis Schlafly "he was just a kid" argument. As she told the Washington Post yesterday, Roberts was "a young bachelor and hadn't seen a whole lot of life at that point." She even offered up the corollary "some-of-his-best-friends-are-women" defense, observing, "I don't think that disqualifies him. I think he got married to a feminist; he's learned a lot." Of course the obvious answer to the assertion that his views have evolved over 20 years is to allow us to see documents that are less than 20 years old, i.e., the files from the period in which he served as the deputy solicitor general under President George H.W. Bush. But the White House won't let us see recent files. So I herein suggest that Roberts supporters are estopped from advancing the "just a kid" defense.
Finally, there's the humorless-feminist tack. I vaguely remember this argument from the '80s: It's that women can't take a joke. So that is the new defense: This wasn't just a joke, it was a lawyer joke! That's evidently the White House position, too: "It's pretty clear from the more than 60,000 pages of documents that have been released that John Roberts has a great sense of humor," Steve Schmidt, a Bush spokesman told the Washington Post. "In this [housewives] memo, he offers a lawyer joke."
I don't quite know what to make of that argument. It brings me back to Bruce Reed's giggling blondes. The problem isn't with his desperate housewives (or hideous lawyers) crack, but with his relentless "Gidget sucks" tone. Roberts honestly seemed to think that humor or disdain were the only appropriate ways to think about gender. It's not that feminists can't take a joke. It's that Roberts can't seem to take feminists seriously.
The record seems to make it quite clear that Roberts—with his "perceived/purported/alleged" discrimination trope—simply didn't believe that gender problems were worthy of his serious consideration or scrutiny.
The emerging picture of Roberts is of a man deeply skeptical about federal efforts to equalize opportunity for women or minorities, be it through busing, housing, voting rights, or affirmative-action programs. He was even more skeptical of judicial efforts to engage in the same project. And that's a legitimate, if debatable, political theory. But if, as the memos suggest, Roberts' ideological views are the result of being too smart-alecky or dismissive to accept that these disparities were of serious national concern in the first place, he doesn't just have a gender problem. He has a reality problem.
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