LAW TO REGULATION TO TYRANNY: CHIEF JUSTICE ROBERTS & SENATOR EVERETT DIRKSEN

                                               By Hugh Murray

            On June 29, 2012, Chief Justice John Roberts surprised the nation by voting with the liberal bloc of four to rule that Obamacare was legal under the Constitution.  His ruling caused both amazement and confusion.  Roberts did side with the conservative four to rule that the mandate to purchase health insurance under the commerce clause was unconstitutional; this part of the court’s decision was read first, causing both CNN and Fox News to conclude that the essential financial part of the law had been struck down.  However, Roberts went on to write that the law was Constitutional because it was covered by the taxing powers granted to Congress.

            Roberts and the Supreme Court had been under some attack by the liberal media because of the Court’s decision, earlier that week, to reaffirm the Citizens United ruling of 2010 allowing corporations and unions to spend as much as they like supporting political candidates  under the rubric of free speech.  Moreover, ever since the oral arguments on the Affordable Healthcare Act (Obamacare), many feared that the Court would find the law unconstitutional.  Both liberals and conservatives assumed that the swing vote would be Justice Kennedy, a Republican appointee whose voting pattern is rather unpredictable.  But in this instance, Kennedy voted solidly with the conservatives of Scalia, Thomas, and Alito.  It was the usual conservative Justice Roberts who abandoned the conservative camp to save Obamacare.  And suddenly, there were more favorable stories in the media praising Roberts, and his picture was the cover of Time Magazine, 16 July 2012 with the clever title, “Roberts Rules.”

            My point here is not to analyze the health care law of over 2,000 pages.  Nor is it to analyze the sophistry of Roberts ruling.  My objective is to compare Roberts to another Republican leader who, at a crucial time, also stepped forward to save the day for liberals – Sen. Everett Dirksen of Illinois.

            In 1964 Democratic President Lyndon Johnson urged passage of civil rights legislation.  The trouble was that most of the opponents of the proposed law were some of the most influential Democratic Senators.  As in the past, these Democrats threatened to filibuster, that is, talk the bill to death without ever voting on it.  The Southern opposition was composed of 22 Senators (21 Democrats and one Republican).  Northern and liberal Democrats had more votes than the opposition, almost 40 Senators.  But to stop a filibuster, a vote of 2/3s of the Senate was required – some 67 votes.  How could the liberal Democrats attain enough votes for cloture and the end of debate on the law, so that finally a vote on the proposed law could be taken?

            The Southern opponents of the bill were led by Georgia’s Sen. Richard Russell, but they included men like Sen. Sam Ervin, who would win the acclaim of liberals later in his career when during the Watergate investigation into dirty tricks by the Nixon Administration, Ervin pressed hard questions on the defenders of Presidential Privilege and secrecy.  Also, among the opponents of the civil rights bill was Arkansas Sen. William Fulbright, who would become one of the early critics of the Vietnam War, and an inspiration to a young Arkansan, Bill Clinton.

            Northern Democrats promoting the civil rights law were led by Minnesota’s Hubert Humphrey.  He had first come to prominence in 1948 as the young Mayor of Minneapolis who proposed a civil rights plank to the 1948 Democratic Convention.  The hot convention hall became even more heated in the debate on this issue, and when it passed, with only 52.8% of the delegates favoring it, numbers of other delegates stormed out of the convention.  They abandoned Harry Truman’s Democratic Party to establish the States’ Rights Democratic Party (known as Dixiecrats) and carried four states in the November election.  Humphrey had led the victorious fight for adoption of the civil rights plank in the Democratic platform in 1948.  In 1964 he was leading the fight for passage of a civil rights bill for all Americans.  In the convention, he needed only a simple majority.  Similarly, to pass the legislation in the Senate would merely require a majority, but to cut off debate so the Senate could vote on the legislation would require a  2/3s majority, or 67 of the 100 Senators.  To achieve that large a majority, the Democrats would have to rely on Republican Senators.

            The eastern establishment of the Republican Party was quite comfortable with civil rights legislation.  The first state Fair Employment Practices law had been passed in New York state with the support of Gov. Thomas Dewey.  It earned Dewey few Black votes when he ran against Truman in 1948, and the NAACP basically became a front-group for the Democrats, even firing a founder of the organization, W. E. B. Du Bois, when he endorsed Progressive Henry Wallace.  Some of the more Mid Western Republicans were undecided about a federal civil rights bill, and one prominent Senator, Barry Goldwater of Arizona, opposed a national civil rights law.

            Not all Americans were pleased with the prospect of the federal civil rights legislation.  1964 was a presidential election year, and everyone assumed that Lyndon Johnson, sworn in only in late November 1963, would easily become the Democratic nominee.  However, segregationist Democratic Governor George Wallace of Alabama entered several Democratic primaries in Northern states.  Johnson was not on the ballot, but had surrogates run on his behalf as favorite sons.  The returns were a shock to many liberals.  Staunch segregationist Wallace won 25 to 42% of the Democrats voting in the primaries in Wisconsin, Indiana, and Maryland.  Clearly, some Northern Democrats were expressing their opposition to the proposed civil rights movement, Black riots, and pending civil rights legislation.

            The Republican Establishment promoted several presidential candidates acceptable to the liberal, Dewey wing of the party, and most of these fell behind another liberal, New York Republican Governor, Nelson Rockefeller.  The more conservative wing rallied round Arizona Sen. Barry Goldwater, who, though supporting civil rights at the  state level, had voted against the federal Civil Rights Act of 1964.

            In hindsight, we know Goldwater lost to Lyndon in a landslide.  Yet surely, some Republicans hoped to win by wooing that 25-42 % of Democrats who opposed the Civil Rights law – those who showed their beliefs by voting for Wallace.  In this effort, Goldwater failed.  He lost the vote national 60 to 40, and carried only his own Arizona and the four Dixiecrat states of 1948 and Georgia.  The era of Reagan Democrats would have to wait.

            The point is that in the spring of 1964 there was no guaranty that the CR Act would pass Congress and become law.  Republican Senate minority leader, Everett Dirksen stepped to the plate.  He had already become famous for his discussion of federal finances: “A billion here, a billion there; and soon you’re talking about real money.”  Dirksen declared that he and other Republican Senators would vote for cloture of debate (and thus allow a direct vote on the proposed CR legislation) if the bill were modified by accepting some of his amendments.  Most of his amendments, and those by a few others like Sen. John Tower of Texas, were meant to make it abundantly clear that the new legislation would not be a quota bill, that standardized examinations could be used, and if some groups failed to pass, there would be no hiring to promote racial balance.  Indeed, that would be illegal, for that would be hiring for racial reasons.  Only intentional discrimination in hiring was to be a crime.  All these amendments were incorporated into the CR bill.

            In summer 1964 most Republican Senators joined with the liberal Democrats to vote cloture and end debate.  Voting for cloture were 46 Democrats and 27 Republicans; voting against were 21 Democrats and 6 Republicans.  While 69% of the Democrats wanted to end the filibuster, 82% of the Republicans voted to do so.  A few days later the bill passed 71-29, with similar percentages.  The media would have us forget that a higher percentage of Republicans voted for the CR Act than did the Democrats.  Indeed, 78% of the no votes came from Democratic Senators.  President Johnson signed the bill into law in 2 July 1964.  Sen. Dirksen had saved the day, and he too was featured on the cover of Time Magazine, 22 June 1964, with the cover story, “The CR Bill: Product of Principle and Compromise.”  Of course, in 1964 Time’s influence was far greater than in 2012.

            However, despite all the guarantees that language and law can provide, the Civil Rights Act of 1964 was subverted and perverted by the Equal Employment Opportunity Commission, the agency meant to enforce it.  With the aid of liberal judges, and worse, the appointees to the Suprme Court by Republican Presidents, the CR Act was twisted into a quota law, requiring hiring for racial (and later ethnic and gender) balance.  Statistics were used to find guilt of discrimination even when no intent to discriminate was proven.  For example, if an employer sought to hire only high-school graduates, the EEOC charged that this was illegal for it would have a disparate impact because a smaller percentage of Blacks than whites had attained that level of education.  And so that requirement was struck, as well as performance on aptitude tests, IQ tests, criminal records, etc.  The only objective test permitted was the quota test for racial and other balance. (Indeed, on 5 July 2012 a federal judge in New York struck down a firefighters’ exam because few Blacks could pass it, and ordered quota hiring instead.)

            Liberal President Nixon offered a Supreme Court seat to liberal Republican Tom Dewey, but Dewey declined.  Nixon then appointed as Chief Justice Warren Burger, who wrote the Griggs decision, which was sophistry at it worst, and which turned a law which forbade quotas into the quota bill we have endured for 40 years.  Under Nixon, quotas became the law of the land, and he expanded them to include women, Hispanics, Amerindians, and later, some Asians.  Nixon made affirmative action preferences and quotas national policy.

            Some readers will be incredulous that I refer to Nixon as “liberal.”  This is not what they learnt at university and on television.   Yet, as Phil Ebersole summarized on his blog, Nixon “created affirmative action in its present form. He responded decisively to an economic emergency by imposing wage and price controls.  He proposed a Family Assistance Plan which would guarantee a minimum income for all Americans, and a Comprehensive Health Insurance Act which would have provided a public option as an alternative to private health insurance.  He endorsed the Equal Rights Amendment for women.

“The Comprehensive Health Insurance Act was rejected by Congress. So was the Family Assistance Plan, but the Earned Income Tax Credit was enacted as a substitute and compromise.

“The President did sign into law the Equal Employment Opportunity Act, the National Environmental Policy Act and the Clean Air Act.  His administration established the Environmental Protection Agency, the Occupational Health and Safety Administration and the Council on Environmental Quality.”

            Early in his Presidency, the Nixon Administration had to lobby the NAACP to support the Philadelphia Plan, with its hiring by racial quotas.  The bill barely squeaked through the House of Representatives.  Yet, this was the official beginning of affirmative action as we now know it.  And in addition to domestic policies, the Nixon Administration negotiated with Mao’s China, severing some of our foreign policy from rigid anti-Communism.

            Sen. Dirksen, by the late 1960s was clearly disillusioned with what was happening in the name of the Civil Rights Act, some of which had been written in his senate office.  Dirksen went to Nixon to complain about the subversion of that law into quota requirements with preferences given to lesser qualified and unqualified applicants for positions, in clear violation of the wording and spirit of the law.  Dirksen was even thinking of openly opposing Nixon on these policies.  But Dirksen had cancer, and passed from the scene in November 1964.  Liberals then used their domination of universities and media, the academedia complex, to convince most Americans that the Civil Rights Act had been passed to impose quotas, racial balance, and preferences for the pet groups of the EEOC.

            Dirksen was crucial in the passage of the Civil Rights Act of 1964.  However, once the camel’s head was under the tent, it moved in, not with one hump, but with two and more.  Despite the clear language to the contrary, the US has been suffering under quota hiring, quota promotions, quota university admissions, quota scholarships, quota contracts since Nixon – and in obvious violation of the words of the Civil Rights Act of 1964.

            Perhaps, the words of House Speaker Nancy Pelosi can clarify what happened.  Speaking of the Affordable Health Care Act (Obamacare), she said  on 9 March 2010 we should pass the bill to find out what is in it.

            The liberals and the bureaucrats KNOW what is in the Obamacare law: ANYTHING THEY WANT TO BE IN IT.  They do not care about the wording of the law.  They care about the back-door committees that will implement, interpret, and expand that law.  They care about their power.   Just as the EEOC turned the Civil Rights Act of 1964, - a law that forbade quotas, hiring for racial balance, that permitted tests in which some groups might do poorly, forbade racial discrimination (race preferences), all this was consciously subverted by the EEOC, the agency meant to enforce the Civil Rights Act of 1964.   And so Obamacare will be manned by those who will make the law into anything they want it to be, even if it directly contradicts the law they are supposed to enforce.

            I suspect one day Chief Justice Roberts will rue his Obamacare decision, as Sen. Dirksen was disturbed by the subversion of the civil rights law he did so much to enact, and the subversion of which was already evident prior to his death.