Skip to main content

Where did John Roberts and Bill Rehnquist stand on "equal protection?"

     In 1983 ---


   Discrimination may be the central political theme in the legacy of Bill Rehnquist, chief justice, and his young protege Roberts —   culminating in the two's intertwined roles five years ago in crafting the legal premise for Bush v. Gore.  This has not been reported in the national press, only by the Miami Herald and the Florida newswire in July. More info below.

       Fighting against, or for, discrimination ??  And bound for chief justice of the US.

Did you know this about your last chief justice of the US?
Did your national press tell you this?   --->  

  1.   It was Bill Rehnquist in the precincts of South Phoenix in 1962 who challenged miniority voters aggressively one by one with literacy tests, causing long lines and discouragement of voters — as testified to by attorneys and witnesses. [Info is below.]  At his confirmation hearing in 1971 and 1986, Rehnquist was evasive, but even his local supporters described the general vote suppression techniques in Maricopa County in 1962.

             "Every Black or Mexican voter was being challenged on this latter ground (literacy), and it was quite clear that this type of challenging was a deliberate effort to slow down the voting so as to cause people awaiting their turn to vote to grow tired of waiting and leave without voting.''  [ - Judge Charles Hardy ]

    Melvin Mirkin, an attorney in Phoenix who supported Rehnquist's nomination, testified that he saw Rehnquist intimidate voters by encouraging them to leave the line at a minority polling place and by instructing Republican challengers loudly enough for voters to hear that unregistered or illiterate people would not be allowed to vote.40  Rehnquist denied the charges and claimed that his recollection was not good enough to give more detailed information.41

    [Assistant US Attorney James] Brosnahan testified that while talking to Rehnquist about the complaints against him, Rehnquist's comments indicated that he had been challenging voters.36   Brosnahan stated his views on events in south Phoenix in 1962. "Based on interviews with voters, polling officials, and my fellow assistant U.S. attorneys, it was my opinion in 1962 that the challenging effort was designed to reduce the number of black and Hispanic voters by confrontation and intimidation."37

    Literacy tests by Arizona's Operation Eagle Eye were in fact legal until a 1971 court case affirmed a Voting Rights amendment outlawing the tactic.

  2. Fast forward.

    Voter disenfranchisement in elections takes a more subtle turn in recent years.
    (No literacy test.)

    Associate WH Counsel John Roberts penned 25 memos against strengthening the provisions of the Voting Rights Act in 1982.

  3. Roberts also wrote briefs that helped persuade SCOTUS to freeze and nullify the FLA recount in 2000 – because it abridged due process and violated "equal protection."  This input by Roberts was reported on the Fla. newswires in July — but not on the national wires.

    None of his colleagues can recall which briefs he worked on in 2000.  The Miami Herald wrote of Roberts' key role as prep coach and "lawsuit editor" in his "larger 2000 recount role" than was previously revealed to the public.

    The Rehnquist court decided the case on the ground that the "equal protection"  clause was breached for Florida voters by a continuing recount in the sunshine state.  [The recount mechanisms] "... do not satisfy the minimum requirement for non-arbitrary treatment of voters ..."

    The facts on the ground :

    "Second chance voting--for some"

    In the county of Leon (contains Tallahassee) and 23 similarly administered counties, the counting machines for the op-scan ballots in each precinct were set with a fallback feature, a second chance.  Any spoiled ballot would be literally spit out by the machine as a reject, to be handed back to the voter for a new fixed, corrected ballot.  The counter would not accept a spoiled ballot.  However, in 15 other op-scan counties, the second chance feature was not available; and in two counties, it was was purposely turned off.

    [ See Orlando Sentinel,  re Escambia and Manatee counties. ]


    "In some precincts with optical-scan ballots, those who voted twice in the same race were rescued by machines programmed to reject such ballots and give voters a second chance. But not all counties with such ballots possessed the equipment, and not all counties with the equipment used it on Election Day.

    Escambia and Manatee counties possessed the second-chance capability but deactivated it.

    Escambia Supervisor Bonnie Jones said, "People should be able to mark their vote correctly." She said giving voters a chance to correct mistakes "increases the cost of an election," because ballots cost 25 cents apiece.

    "The state provided no guidelines, [Clay] Roberts said. 'The statutes were silent on the issue.'"

    In the counties where the kick-out feature was not used or not enabled, more than 5% of op-scan ballots were uncounted.  In the more fortunate 24 counties that had the feature and enabled it, only one-half of a percent of ballots were invalid and uncounted.

    At least 120,000 votes were wasted in the sunshine state, but almost none in the second-chance counties.

    In Gadsden County, adjacent to Leon, the county is majority African-American (57%) with lower incomes and educational attainment on average than its neighbor.  The counting machines were centrally located instead of present on-site at the precincts — and unlike Leon, there were no second chances.

How does the express grounding of "equal protection" in the Supreme Court outcome hold up to the facts on the ground?
    Where does our nominee for Chief Justice stand on the issue?  Was the committee hearing adequate if no senator even asked him the question about his participation?

Though of course people liked or hated the outcome of the Supreme Court case based on who they wanted to see as President – and a continued count could have produced either outcome depending on the "standard" picked (Orlando Sentinel's handy chart of 9 outcomes [ orig Orlando Sentinel link (scroll)], about half for the Democratic candidate and half for the Republican) – just as important to our acceptance of it is the logic, possibly contorted, that propelled the case.

    • We don't know the role Roberts played in coming up with grounds that equal rights would be violated in a re-count.  His colleagues can't recollect just what he helped on, according to the Miami Herald.

    • In another mystery —  Someone has "disappeared" the Affirmative Action file of John Roberts from the library.  It is no longer found — after 2 lawyers, one from Harriet Miers' WH Counsel's office and one an aide to Gonzales at DoJ, removed and reviewed the file, and supposedly returned it.  

      The WH will not reveal the names of the 2 lawyers who last had custody of Roberts' affirmative action file.

    • His SG files are kept sealed.  That as likely is hiding his opposition to special prosecutor Lawrence Walsh's appeal to SCOTUS re the North and Poindexter convictions, hiding the sins of the father --  SG refused to support the writ of certiorari to SCOTUS -- as much as it conceals noxious views on protection of civil rights.

    • Roberts warned that Voting Rights Act violations "should not be made too easy to prove." Memorandum from John Roberts to the Attorney General (Dec. 22, 1981).

    • An editor of a local newspaper wrote about Roberts
      I wonder if he has too much baggage being a protector of white guys everywhere to effectively render decisions that involve the melting pot that is the United States.

      Was this the columnist for a black newspaper, or a militant rights group?  No it was the editor of the Delta Democrat Times in Mississippi.

  2 Anti—antidiscrimination justices in a row for the U.S.

For shame, senators.  For shame.

How extraordinary.  Whatever positions you have taken for the nominee, you should recant.  For the sake of our civil rights and our laws against discrimination.

As a note, if the Dems can not oppose a nominee whose SG work has been withheld, whose anti-abortion views are suspected but who was unforthcoming in his testimony, how will they oppose a similar nominee who is nearly but not quite as conservative as Roberts?  How would they oppose a Latino like Miguel Estrada on the same issues, who would tip the balance even more?

A severe miscalculation by 45 Democratic senators on tactics — and by 100 senators on the civil rights of Americans.

Originally posted to joan reports on Mon Sep 26, 2005 at 12:56 PM PDT.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  I don't even see how Republicans can vote (none)
    for someone who is opposed by so many civil rights organizations!  Following the "rescue apartheid" that was New Orleans.
  •  While I think you make a number of good points (none)
    in your diary, I think it is a huge mistake for the left to overreach.  There are lots of good reasons to vote against Roberts.  So why the hyperbole?

    What Roberts' actually said about the alleged "fundamental right to be free from discrimination," is that "There is of course no such right; at the very least 'illegal' should modify 'discrimination,'" Roberts wrote. "More significantly, 'fundamental right' is a legal term of art triggering strict judicial scrutiny."

    Guess what?  He's correct.  Our Constitution permits many different forms of discrimination.  It also prohibits many different forms of discrimination.  But, there is no fundamental right to be free from discrimination generally.

    •  Well, it may be technically so (none)
      but I'm sure there are plenty of top lawyers who would not have struck all the language, maybe would have inserted the word illegal, or removed the word fundamental.

      This view seems to have informed nearly every position he ever staked for himself!

      I agree with John Lewis and Harry Reid; he's been "on the wrong side of history" on voting rights, women's equity and civil rights.

    •  Illegal Discrimination (none)
      Is not defined constitutionally at all.  It's judge made law.  So is the concept of strict scrutiny.

      And that's not an accident.  

      Thus, anti-discrimination law may be the one place where you really can discern how a person is likely to rule by reading his or her opinions.  

      My separate place for mental meanderings: Political Sapphire

      by shanikka on Mon Sep 26, 2005 at 03:33:36 PM PDT

      [ Parent ]

  •  Excellent diary ... (none)
    Learned a lot amid frustration over SCOTUS and how POTUS is screwing the nation for decades to come with his opportunities to put in judges who will undermine modern concepts of American society and help the American Taliban make our schools safe for the Dark Ages of "intelligent design" designed to undermine our educational structure and so on ...
  •  Anti-Discrimination? (none)
    Foo - nobody cares about that.  It's all about gender.  And privacy.  Nothing else matters.  The fact that Roberts wrote far more clearly about his views about discrimination (there isn't any, not really; sort of like Uncle Clarence's opinion) than any other subject is clearly irrelevant.

    We just have to accept it's not all that important in the larger scheme of things.  Certainly not enough to derail a Supreme Court justice.)  It's certainly not worth putting up a fight.

    (Yes that's sarcasm.)

    My separate place for mental meanderings: Political Sapphire

    by shanikka on Mon Sep 26, 2005 at 03:32:25 PM PDT

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site