Ruth Bader Ginsburg's support for racial quotas was hidden from the public during her Supreme Court confirmation hearings

Before she was on the United States Supreme Court, Ruth Bader Ginsburg supported a U.S. government racial quota plan when she was on the United States Court of Appeals for the District of Columbia Circuit.  The mainstream media did not tell the public about it.  The Democrats and Republicans in Congress did not tell the public about it.  Talk radio hosts did not tell the public about it.  As a Supreme Court justice, Ginsburg continued her approval of racial preferences, AKA "affirmative action," as described herehere, and here.

When Ginsburg was nominated for the Supreme Court by former President Bill Clinton on June 22, 1993, before we had the Internet, I waited for the media to tell the public about her position on racial preferences.  She had been a federal judge for over a decade, and it was possible she had ruled in such a case.  There were news broadcasts and articles about how she had ruled on many other issues, but not racial preferences.

My curiosity led me to a law library, where I found a case after only fifteen minutes of researching.  I wrote an opinion article about the case and submitted it to newspapers and magazines all over the country.  I sent it to conservative talk radio hosts.  I sent it to all of the Republican members of the Senate Judiciary Committee, and to a few Republican members of the House of Representatives.  Nobody to whom I had sent the information shared it with the public.

As her confirmation hearing was about to begin, I sent my article to a smaller publication, the Los Angeles Daily Journal, which is a newspaper targeted at judges and lawyers in Los Angeles.  On July 13, 1993, the L.A. Daily Journal published my opinion article.  As far as I know, the media and our elected officials never publicly discussed the information in my article.  Ginsburg was never asked about it at her confirmation hearing, where her testimony began on July 20, 1993.  When Ginsburg was confirmed on August 3, 1993, the Senate was controlled by the Democrats, who had 58 seats.  She was confirmed by a vote of 96-3.

The following is my opinion article that was published in the L.A. Daily Journal a week before her confirmation hearing testimony:

Supreme Court nominee Judge Ruth Bader Ginsburg supported a racial quota plan that allowed for the possible promotion of less qualified individuals over more qualified individuals, when the less qualified individuals were black and the more qualified individuals were white.  While sitting as a judge on the United States Court of Appeals, District of Columbia Circuit, Ginsburg was one of three judges who decided the appeal in the case of McKenzie v. Sawyer, 684 F.2d 62 (1982).

The appellate opinion sets forth the facts.  The case arose when black employees of the Offset Press Section (OPS) of the U.S. Government Printing Office brought a class action under the Civil Rights Act of 1964 alleging they were victims of racial discrimination and that they had been denied promotion opportunities to which they were otherwise entitled.

At the time of the lawsuit, OPS employed five categories of workers relevant to the suit.  Supervisors included foremen, assistant foremen, and group chiefs.  Journeymen included qualified craft workers in apprenticeable trades who were responsible for operating most of the machinery in OPS.  Craft uprates operated some of the more complicated machines such as the two-color or the web press and sometimes performed supervisory duties.  Offset press assistants were participants in a training program for journeyman positions, eligible for promotion to journeyman vacancies after successful completion of the training program.  Finally, printing plant workers were unskilled helpers who performed such tasks as loading and cleaning.

The district court granted the plaintiffs' motion for summary judgment and ordered relief.  The relief ordered by the district court included the following promotion plan.  For each uprate or supervisory vacancy, OPS was to create a five-member selection panel, with at least three members of each panel being black.  For each vacancy, the panel was to select a group of "best qualified" employees, drawn from employees at the next lowest level.  Selection was to be based on validated, job-related performance standards.

From the "best qualified" group, the panel was then to select five applicants, based on an evaluation and selection guide.  The names and records of the five were then to be forwarded to the superintendent of OPS, who was allowed to select any one of the five to fill the vacancy.  There was no requirement that the superintendent choose the best qualified individual.

Additionally, OPS also was required to promote black individuals so as to have a specific percentage of specified positions filled by blacks within four years.  For uprate, group chief, and assistant foreman positions, 60% of the employees would have to be black.  

For foreman positions, 50% of the employees would have to be black.

Ginsburg did not write the opinion, but she concurred with the appellate court's affirmation of this racial quota plan.

Given the failure of the district court to require that the OPS superintendent choose the best qualified individual from among the five finalists for each vacancy, and the court's requirement that 50-60% of the positions be filled by blacks, it is clear that both the district and appellate courts condoned the possible promotion of less qualified individuals because they were black over more qualified individuals who happened to be white.

Of course, we cannot assess the qualifications of those who were actually promoted.  It is possible that each vacancy was filled by the best qualified candidate and the 50-60% racial quota was still met.  It is also possible that the best qualified candidate for each vacancy was always black and that when the 50-60% quota was met, the superintendent unjustly and illegally discriminated against black individuals and chose less qualified individuals because they were white.

Nevertheless, the important point is that the 50-60% quota put pressure on the superintendent to promote a black individual even if that person was less qualified than another person who happened to be white.  If the best qualified candidate among the five competing for a promotion happened to be white, it was okay with the district and appellate courts if the superintendent promoted a less qualified individual who was black in order to meet the 50-60% quota.

There should not have been any pressure to promote a less qualified individual who happened to be black or a less qualified individual who happened to be white.  There only should have been pressure to promote the best qualified individuals without regard for their race.

If the district and appellate court's primary goal was to have the best qualified person promoted to fill each vacancy, then the OPS superintendent would have been ordered to select the best qualified candidate from among the five finalists and there would not have been a requirement that 50-60% of the positions had to be filled by blacks within four years.

The district court's order created the following situation.  Given the Civil Rights Act's prohibition against racial discrimination, it would have been illegal for the OPS superintendent to select on the basis of race, a less qualified individual who was white over a more qualified individual who was black.  However, the district court made it mandatory for the superintendent to select a less qualified individual who was black over a more qualified individual who was white if that's what it took to meet the quota.

The intent of those who enacted the Civil Rights Act of 1964 was to encourage hiring and promotion of the best qualified individuals without regard to race.  They shared Martin Luther King's belief that a person should be judged by the content of one's character, not by the color of one's skin.

By her conduct, Ginsburg joined a long list of bureaucrats and judges who have continued to view people as members of racial groups first, and as individuals second.  Ginsburg's perversion of the Civil Rights Act has helped keep King's dream from becoming reality.

Allan J. Favish is an attorney in Los Angeles.  His website is  James Fernald and Mr. Favish have co-authored a book about what might happen if the government ran Disneyland, entitled "Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).

Image credit: Caricature by DonkeyHotey via Wikimedia CommonsCC BY-SA 2.0.

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