[Mb-civic] The stealth appointee - Thomas Oliphant - Boston Globe

[William Swiggard]

The stealth appointee

By Thomas Oliphant  |  September 13, 2005

WASHINGTON
JOHN ROBERTS is poised to win confirmation as the next chief justice of 
the United States because, among other things, he knows the law cold. 
But after one of the most near-perfect, resume-punching voyages ever to 
the Supreme Court, there is almost no evidence of his understanding of 
justice.

This has nothing to do with the overwhelming odds of his confirmation by 
the Senate. It does, however, have something to do with how his possibly 
routine elevation should be received.

To illustrate, I have no doubt that his encyclopedic knowledge of 
constitutional history includes a detailed understanding of Plessy v. 
Ferguson, the landmark abomination that enshrined segregation in 1896 
for another 58 years under the delusional mantra of ''separate but 
equal." It wouldn't surprise me if Judge Roberts could quote sentences 
from Justice Henry Brown's majority opinion on behalf of eight brethren 
and even from John Harlan's passionate dissent.

But I doubt very much that Roberts knows beans about Homer Plessy, and I 
can imagine him being tripped up even if asked Plessy's first name. It 
is that human face of justice, or injustice, that concerns me, and, from 
the available record anyway, has never interested Roberts.

Plessy was a New Orleans Creole, born in the middle of the Civil War and 
an activist by the time he agreed in 1892 to test Louisiana's law 
requiring segregation aboard trains. He was arrested for refusing to 
leave the ''white" car (shades of Rosa Parks 63 years later), jailed, 
and held on a bond of $500, very stiff for those days. It mattered not a 
whit to the racist authorities that his heritage included but one 
great-grandmother of African descent; that's all it took to subject him 
to racial discrimination.

Plessy made the ridiculous, for that period, contention that the 13th 
Amendment made him free and the 14th gave him the same rights as anyone 
else, which no state could abridge. After losing that argument four 
years later, he lived out his days in New Orleans; he was a shoemaker by 
trade. Plessy died in 1925.

Around here, it is chic to consider Roberts's confirmation doubly likely 
because he is set to replace William Rehnquist instead of the less 
predictably conservative Sandra Day O'Connor. Rehnquist's recent death 
removed the last figure from the court who had a link to the shameful 
civil rights days. As a Roberts-like genius fresh out of law school, 
Rehnquist wrote a personal memo to the justice for whom he clerked, 
Robert H. Jackson, arguing that the Plessy doctrine should be upheld in 
the set of school segregation cases before the Supreme Court in 1953.

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/09/13/the_stealth_appointee/
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