From Slate.com's Jursiprudence Reporter Dalia Lithwick:
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 traditionally female 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.
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."
Another memo has Roberts blasting the proposed Equal Rights Amendment, dismissing it as an attempt to "bridge the purported 'gender gap.'
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.
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."
inally, 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.