Extensions of Remarks

14696 EXTENSIONS OF REMARKS July 13, 1989 EXTENSIONS OF REMARKS THE SUPREME COURT AND lowed-it isn't-but that it is now harder to tiff need not have intentional discrimina CIVIL RIGHTS justify quotas or force them upon employ tion. Statistical imbalance in the racial com ers. Almost all Americans want to heal the position of the work force was presumed dis wounds of race; almost all are concerned criminatory unless proven otherwise. The HON. F. JAMES SENSENBRENNER with civil liberties: but most are opposed to test was the consequences of business prac OF WISCONSIN racial and sexual quotas in employment, tices, not their motivation. IN THE HOUSE OF REPRESENTATIVES promotion and education. This highly questionable reading of the Thursday, July 13, 1989 MORAL ASSAULT act produced unfortunate results. Statistical But quotas are the pet solution of the imbalances are everywhere in our society Mr. SENSENBRENNER. Mr. Speaker, civil American left, which specializes not in argu since entirely innocent social forces and cul rights groups and Members of both Houses ment but in moral assault upon those with tural differences do not produce proportion have raised a significant cry of outrage over whom it has substantive differences. Now al representation of each ethnic group in the Supreme Court's recent civil rights deci that the moral assault is directed at the Su each occupation. sion in Wards Cove versus Atonic. So often preme Court it is important that Americans Wards Cove involved Alaskan salmon can neries that had a predominantly white work when an issue gets flagged by civil rights understand what the court has in fact done and what it has not. force in skilled jobs and a predominantly groups as "Bad" for civil rights, many Mem nonwhite work force in unskilled jobs. The bers jump right on the bandwagon and start The court's January decision in Richmond v. J.A. Croson Co., held unconstitutional the court of appeals had held that imbalance singing the same tune-lest they should be la city's minority set-aside program. The City created a prima facie case against the com beled "anti-civil rights." Council had adopted an ordinance requiring panies. Justice White's opinion for the ma Well, I can assure you that to be labeled prime contractors on city construction con jority disagreed: The lower court's theory anti-civil rights today, you need only follow the tracts to subcontract at least 30% of the "at the very least, would mean that any em civil rights leadership agenda-because what dollar amount of the contract to businesses ployer who had a segment of his work force you will get are quotas. But quotas are not at least 51% owned by U.S. citizens who are that was-for some reason-racially imbal anced, could be hauled into court and forced what we bargained for in civil rights. Any bill to "Blacks, Spanish-speaking, Orientals, Indi ans, Eskimos, or Aleuts." It was less than to engage in the expensive and time-con overturn Wards Cove is a bill to mandate clear why Richmond thought it should suming task of defending the 'business ne quotas. extend the benefits of its quota to minori cessity' of the methods used to select the As it stands, employers will finally be able ties from anywhere in the U.S. and even less other members of his work force." Thus, the to make some employment decisions on the clear how Orientals, Indians, Eskimos, and "only practicable option for many employ basis of merit for a change and now Congress Aleuts got on the favored list. The one ers will be to adopt racial quotas. : this is wants to take all that away. No, they say thing that was clear was that white-owned a result that Congress expressly rejected in quotas are what we want. Well, I say no to companies were to be discriminated against. drafting Title VII." that. That goes against everything we have Croson Co. was. The court held that the proper compari Croson was the only bidder on a project son was between the proportion of a racial worked so hard to achieve-civil rights in a and the only minority supplier of fixtures group in the work force and the proportion color-blind society. willing to participate came in well over of. qualified members of that race in the The recent editorial in the Wall Street Jour market price. The city denied requests that pool available to the employer. The plaintiff nal by the very distinguished Judge Robert H. the minority requirement be waived or that must also identify the employment practice Bork, eloquently explains this outrage. I in the contract price be raised and Croson lost alleged to be responsible for the disparity. clude it in my remarks and urge my col the contract. Once that has been done, the employer leagues to read and heed. The court found a violation of the equal must produce evidence of business justifica [From the Wall Street Journal, June 30, protection clause of the fourteenth amend tion for those practices but the ultimate 1989] ment. "The Richmond Plan," Justice burden of persuading the court that dis O'Connor's opinion said, "denies certain citi crimination exists remains with the plain THE SUPREME COURT AND CIVIL RIGHTS zens the opportunity to complete for a fixed tiff. <By Robert H. Bork> percentage of public contracts based solely Civil rights activists charged that the The Supreme Court has decided a series upon their race." The 30% quota was not an court had done two terrible things. One was of civil rights cases this term and from allowable remedy because there was no evi to change the rule of Griggs; the other was much of the press reaction, as well as that dence that the city or anyone in the Rich to make it more difficult to win a discrimi of the civil rights groups, one might suppose mond construction industry had illegally nation case. Neither charge has any merit. that the justices had reinstituted segrega discriminated against anyone. Courts modify prior decisions all of the tion. The opinion is marred only by its argu time. Indeed, the court the activists most The New York Times editorialized that ment that the federal government could admire, that headed by Earl Warren, contin the court "displays an icy indifference ... impose quotas that the states and cities may ually jettisoned prior rulings if found politi to the hopes of discrimination victims." A not because the federal government has the cally or morally unseemly. For the present guest columnist in the Washington Post an power to "enforce" the 14th Amendment. court to modify a rule that produced results grily asked, "Is the only choice now for civil The power to enforce, however, is the power contrary to the intention of the 1964 Civil rights activists between capitulation or an to prescribe remedies, not the power to Rights Act is not only unexceptionable but angry return to the streets?" Reaching an change the substantive command of the praiseworthy. The fact that plaintiffs may even shriller note, an editor of the New Re equal protection clause. Justice Kennedy have more difficulty winning proves nothing public proclaimed that in America "Race is said in concurring, "The process by which a at all. The object of the law is not to see the the wound that will not heal, and the Su law that is an equal protection violation plaintiffs always win. All the Supreme preme Court has just rubbed fresh salt in when enacted by a State becomes trans Court has held is that discrimination must that wound ...." He invited us to behold formed to an equal protection guarantee be proved rather than assumed. Only to "the dizzying moral fall from the Warren when enacted by Congress poses a difficult those who think America pervasively and in Court, a product of Eisenhower Republcan proposition for me.... " If the Court sticks curably racist does that seem outrageous. ism, to the Rehnquist Court, a product of to that untenable distinction, the pro-quota Also this month, Martin v. Wilks held Reagan Republicanism." Something pretty forces will have won more than they should. that white firefighters in Birmingham, Ala savage must have happened. In June, when the court handed down bama, were not barred by a consent decree, What actually happened is that the court Wards Cove Packing Co. v. Atonio, the left's to which they were not parties, from chal made some moderate and overdue adjust moral assault moved into high gear. Eight lenging the preferential promotion of alleg ments to legal doctrine in the field of civil een years before, in Griggs v. Duke Power edly less qualified black firefighters. The rights law. The real cause of the caterwaul Co., the court had decided that under Title challengers had a right to their day in ing is not that discrimination is being al- VII of the Civil Rights Act of 1964 a plain- court. The court majority applied the estab- e This "bullet" symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor. Matter set in this typeface indicates words inserted or appended, rather than spoken, by a Member of the House on the floor. July 13, 1989 EXTENSIONS OF REMARKS 14697 lished "general rule that a person cannot be TRIBUTE TO JOHN MOONEY "I visited Israel recently and was shocked deprived of his legal rights in a proceeding by what I saw there. The state is so small to which he is not a party." The opinion that a soldier standing guard on any border necessarily relied upon the Federal Rules of HON.

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