Precedent for a civil rights veto

Tom Wicker

October 25, 1990|By Tom Wicker

WHO WOULD have thought that a pedigreed Connecticut Yankee, educated at Andover and Yale, would dabble in white backlash?

But what other plausible explanation can there be for George Bush's veto of the first civil rights bill to come across his presidential desk?

If Bush really believed that he was vetoing a "quota bill," he had to ignore impressive testimony -- easily a preponderance of the evidence -- to the contrary, and not just from the women and racial minorities who would have benefited from the measure's anti-discrimination provisions.

If, however, Bush reasoned that he and his party would get greater political mileage from the rebuff a veto would deal to affirmative action programs and their beneficiaries, he had plenty of shabby precedent.

He was, for instance, in the footsteps of Ronald Reagan, who also vetoed a civil rights bill (only to suffer a rare override by Congress).

Bush attempted to put a gloss of legal respectability on his veto, claiming that the bill's "new and very technical rules of litigation" would make it too difficult for employers to defend themselves against charges of discrimination.

In this tortured reasoning, they would be forced to adopt employment quotas to avoid being hauled into court.

Let Bush tell that to the Anti-Defamation League of B'Nai B'Rith, an organization that knows something about quotas and has been on the front lines in the fight against them.

The vetoed act "simply is not a quota bill," said Thomas Homburger, the chairman of the League's civil rights committee.

Or let Bush try to convince perhaps the most prominent black Republican, William T. Coleman, the secretary of transportation in the Ford administration. Coleman supported the vetoed bill.

So did the highest-ranking black in Bush's own administration, Secretary of Health and Human Services Louis Sullivan.

The president showed his hand before it wielded the veto. His threats forced backers of the congressional bill -- including not a few Republicans -- to modify it to meet administration objections.

The legislators went a long way to do so but in the end they could compromise no further without stripping the bill of its effectiveness.

That was what Bush really demanded, as he then made clear with his own proposal.

It was a substitute bill that was dead on arrival in Congress because it so blatantly retreated from the hard-won civil rights gains of minorities and women.

By some interpretations, the Bush substitute would have outlawed affirmative action programs, even those approved in federal court.

Yet the original congressional bill was designed primarily to reverse six restrictive Supreme Court decisions that had made it more difficult for plaintiffs to win discrimination suits.

One of these decisions (Wards Cove) overturned established law dating to 1971 and an opinion written by Chief Justice Warren Burger.

Burger's opinion had placed the burden of proof in discrimination suits on the party best able to show that the procedures at issue were fair and necessary -- the employer.

The Wards Cove decision was an about-face; it placed the burden of proof on an employee who charged discrimination.

Thus Bush's veto of a bill to restore formerly established law not only supports judicial "legislating," in violation of all his protestations about strict construction.

It clearly opts to protect employers rather than to give victims of discrimination a chance to recover -- a deliberate choice that presidential rhetoric about "quotas" was designed to obscure.

The rhetoric didn't quite do the job.

The Washington Post quoted R. Marc Nuttle of the Republican National Congressional Committee, for example, as saying that the political effect of the veto would be to help stop sharp Republican political losses from the current budget debate.

The veto, he said, revived "our theme of individual freedom versus government intervention."

Read Bush's lips: a veto politically aimed, perhaps politically effective.

But the weight of legal testimony overwhelms the president's protestations and quota-talk and casts his veto in familiar and unpleasant tones.

The action may not have been so blatant nor the words so crass as the open appeals to white backlash that were commonplace in the '60s and '70s.

But plenty of Americans will get Bush's message as clearly as they received the one George Wallace used to send.

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