John Roberts' woman problem.

The law, lawyers, and the court.
Aug. 19 2005 6:33 PM

John Roberts' Woman Problem

The humorless feminists strike again.

Score one for Bruce Reed. He picked up on what I completely missed this week: that the most telling aspect of Supreme Court nominee John Roberts' adolescence was not his staunch refusal to get high in the woods, but his contempt for all things female. Closely reading an essay Roberts penned in 1972 for his high-school newspaper, Reed notes that the 17-year-old went beyond arguing for keeping girls out of his Catholic all-boys school. He evinced a horror of "giggling and blushing blondes" that seems to have been airlifted right out of the 1950s: poor beleaguered Roberts and a gaggle of giggling Gidgets.

Yesterday's info dump from the National Archives, raining down more than 38,000 pages of memos from Roberts' service as a legal adviser in the Reagan White House from 1982-86, suggests that Reed has the better of it. What's most startling about Roberts' writings isn't always the substance. Some of the policy ideas he rejected—like that of paying "comparable worth" for traditionallyfemale jobs—may have deserved the scorn he evinced. What's truly is shocking is his dismissive tone, which seemed to surprise even ultraconservative Phyllis Schlafly, who described it yesterday as "smart alecky." Gender disparities are invariably "perceived" or "purported," in Roberts' eyes. Every effort to solve them is laughable. At a moment when serious inequities in women's wages, employment, and opportunities existed in this country, Roberts seemed to dismiss every attempt to remedy them as a knock-knock joke.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

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In a 1985 memo about whether a government lawyer could be nominated for an award program honoring women who changed professions after age 30, Roberts wrote and approved the nomination but added: "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide."

In 1983, while reviewing the "Fifty States Project" that Elizabeth Dole had compiled, surveying various state proposals for solving what he deemed "perceived problems of gender discrimination," Roberts took pains to distance the White House from several initiatives he considered "highly objectionable." He wrote, "I think it is imperative that the report make clear (as it presently does not) that the inventory is just that, an inventory, and that proposals appearing in it are not necessarily supported by the administration." He dismissed, from that survey, a Florida proposal that would have charged women less than men to attend state schools to compensate for their lower earning power as "presumably unconstitutional." He condemned a California law requiring the order of layoffs to reflect affirmative action and not merely seniority as at odds with the administration's policies.

Another memo has Roberts blasting the proposed Equal Rights Amendment, dismissing it as an attempt to "bridge the purported 'gender gap.' " In a later memo, Roberts referenced a proposal from a Reagan supporter for elevating Sandra Day O'Connor to chief justice and appointing a second woman to replace her if Warren Burger retired—and "Presto! The gender gap vanishes." Roberts' response: "Any appointments the president makes will not be based on such crass considerations," Roberts added. "The president's strong record on women's issues—as it becomes more widely known—should suffice to close the 'gender gap.' "

Oddly enough, even Sandra Day O'Connor isn't above such crassness. But then she lived through the "purported" gender gap in a way Roberts did not.

Pile these memos onto what we already know of Roberts and gender issues: that later and as a lawyer in private practice, Roberts would argue for narrowing the scope of Title IX—the statute that bars gender discrimination at any school receiving federal funding.He advocated for court-stripping legislation that would have kept theSupreme Court from reviewing certain classes of cases, including abortion, arguing that such legislation would not "directly burden the exercise of any fundamental rights." He urged the Justice Department not to get involved in a case in which female prisoners seeking job training claimed discrimination, even though his superior, the assistant attorney general for civil rights, disagreed.

Does all this add up to John Roberts, woman-hater?

Elliot Mincberg, senior vice president of People for the American Way, told the Chicago Tribune today, "You do see a real clear lack of regard for—and even it could be argued, hostility toward—laws and theories and arguments that would promote equality for women in important ways." And Kim Gandy, president of NOW, fumed in the same paper: "I don't see Roberts' positions as conservative. ... I know a lot of conservatives who expect women to be paid fairly, who think women should become lawyers if they want to be lawyers. That is not a conservative position, that is a Neanderthal position. It's unfair to conservatives to call the positions he takes conservative."

And does anyone besides me dread the depressing prospect of Sen. Dianne Feinstein and 17 men on the Senate Judiciary Committee tenderly probing at Roberts' sensitivity to women's issues, in a sad retread of the Clarence Thomas hearings?

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."

Heh-heh.

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.