How does he fail Latinos? In many ways

THE U.S. SUPREME Court justice selected to succeed Sandra Day O’Connor will make decisions affecting the lives of Latino families into the middle of the century. That’s why he or she must be committed to protecting and promoting the civil rights and individual liberties of Latinos and all Americans. Unfortunately, the current nominee, John G. Roberts Jr., does not meet that test.

Roberts’ position on civil rights issues of fundamental importance to Latinos -- including immigrant rights, access to justice, voting rights, education and gender discrimination -- have led us at the Mexican American Legal Defense and Educational Fund to oppose his nomination.

On June 15, 1982, Roberts coauthored a memorandum to the attorney general that raises serious questions about his views on the equal protection clause under the 14th Amendment. That was the day that the U.S. Supreme Court affirmed in Plyler vs. Doe the constitutional right of undocumented immigrant children to attend public school on an equal basis with other children. The court held that undocumented immigrants are covered under the equal protection clause, and it ruled that the states have no “substantial interest” in consigning undocumented children, who bear no responsibility for their immigration status, to membership in a permanent underclass.

Yet Roberts sent a memo that day criticizing the solicitor general’s failure to submit a brief “supporting the state of Texas -- and the values of judicial restraint -- [that] could well have ... altered the outcome of the case.”

The effect of Plyler over the intervening 23 years has been to allow undocumented children to receive an education in their local primary and secondary schools, participate more fully in their communities and contribute more to American society than they would have if the discriminatory Texas statute had been upheld. Roberts’ evident disappointment at the outcome in this landmark case raises serious questions about his views on the equal protection clause.

Another troubling issue to emerge from our review of Roberts’ record is his participation in the Reagan administration’s efforts to dramatically weaken certain critical provisions of the Voting Rights Act, a federal statute that has done much to increase Latino participation in the U.S. political system.

Roberts argued vigorously in support of limiting the legal basis for bringing a legal action under the Voting Rights Act. And he repeatedly mischaracterized congressional efforts to guarantee fair voting rights for minorities as demanding “a quota system for electoral politics.” In fact, the Voting Rights Act does not require proportional representation. Had Roberts’ views prevailed, the legislation’s impact would have been much diluted and the gains in Hispanic voting power would not have been achieved.

His work also reveals a troubling hostility to affirmative action programs that have benefited Latinos. Roberts attempted to discredit affirmative action programs and their underlying rationale with a zeal that suggests that his memoranda reflected personal views on the subject, not merely the work product of a government attorney and advocate.

In one Reagan-era memorandum, for instance, the nominee characterized the logical basis for affirmative action as “perfectly circular”; he failed to acknowledge that America’s long history of broad, race-based discrimination required the implementation of remedial affirmative action programs. Roberts wrote that an affirmative action program to increase the number of minorities serving in a municipal police force was destined to fail for the “obvious reason” that the program “required the recruitment of inadequately prepared candidates.”

We reject the nominee’s apparent view that affirmative action programs are destined to fail. Roberts’ position on affirmative action is deeply troubling -- not just to us but to the countless Latinos in Southern California and around the country for whom affirmative action programs have opened the doors of American institutions historically closed to Latinos.

Roberts’ views deserve careful scrutiny by the Senate Judiciary Committee and, if not satisfactorily explained, would justify a “no” vote by senators.