Crazy But Able

The Reagan Library recently released a ton of boxes of documents related to John Roberts. A popular radio talk show host pointed out that is way too much for one person to wade through and attempt to read all in one go. He suggested that bloggers “Adopt a Box O’Docs” and wade through it, looking for anything bloggable, and write a post on the adopted box. Since this isn’t normal Crazy But Able fare, I’ve put the report on one of my two boxes in the extended entry (I’m still reading through my second box). All you folks who don’t care or who have already made up your minds about John Roberts can skip this stuff if it bores you.

UPDATE (6:04 p.m.): Added some commentary on the first Roberts memo below which inexplicably got deleted from a previous draft.

Conventions

• Comparable Worth (1) will sometimes be referred to as “(1)”, and Comparable Worth (2) as “(2)” While I wasn’t “assigned” Comparable Worth (1), the documents in (1) contain a court decision which Roberts comments on in (2), so I do make some references to Comparable Worth (1).
• Page numbers refer to the PDFs unless otherwise indicated.

Executive Summary

In Comparable Worth (2):

• Roberts claimed that a Washington state decision (AFSCME v. Washington (1983)) imposing “comparable worth” standards on the state was unsupported by “the language or logic” of the Supreme Court case it purported to be based on. (pages 24-25)
• Roberts (rightly) bashed the theory of comparable worth. “It is difficult to exaggerate the perniciousness of the ‘comparable worth’ theory,” he said. (I have included his complete quote below.) (page 25)
• Roberts was dismissive in tone when analyzing a letter in support of the comparable worth theory, written by (then) Republican representatives Olympia Snowe, Claudine Schneider, and Nancy Johnson. “I honestly find it troubling that Republican representatives are so quick to embrace such a radical redistributive concept. Their slogan may as well be “From each according to his ability, to each according to his gender,” Roberts said (page 28). Again, the full quote can be found below.

Thoughts:

• Some of Roberts’ dismissive comments on the subject of comparable worth will almost certainly be quoted out of context by radical leftists still enamored with the idea. Indeed, he is already being attacked on this issue, for example in this piece in USA Today, as well as by Kos himself. (See also this google news search pattern.) Recent attacks within the past few days have attempted to highlight Roberts’ negative comments while obfuscating the theory of comparable worth to the point of nothingness, referring to it only as an “important discrimination issue” or “an approach toward rectifying wage discrimination.” Another example of this kind of attack comes from the intro to the USA Today piece linked above: “As an assistant White House counsel in 1984, John Roberts scoffed at the notion that men and women should earn equal pay in jobs of comparable importance, and he belittled three female Republican members of Congress who promoted that idea to the Reagan administration.” Because of these attacks, it’s worth taking a look at what Roberts actually said on the issues involved.
• One of Roberts’ memos in box 2 is incomplete. This is unfortunate because it happens right as he seems to be getting on a roll. It’s possible that the incompleteness of this memo will become a point of contention, although it is unlikely to be a lynchpin confirmation issue.

Analysis

My two “boxes” were Comparable Worth (2) and Comparable Worth (3), the second and third of the three “comparable worth” boxes. If you don’t know what “comparable worth” means, read the next section. If you’re already familiar with the theory of comparable worth, feel free to skip my explanation.

What is “comparable worth”

“Comparable worth” is a theory which states that all jobs can be ranked on a single scale and be given an objective “worth” score by “disinterested” third party observers. Jobs with the same worth score should pay the same wages. If jobs with the same worth score do not pay the same wages, yet are each dominated by workers in different genders, then it is a sign that some form of gender discrimination is taking place.

An example of this comes from a 1982 study done in Washington State, cited by the February 6th, 1984 issue of Time Magazine, on page 30. This study figured out the “comparable worth” of different jobs by giving points for the different qualifications which a person would need to perform that job adequately. “Truck Driver I”, a male-dominated job, and “Laundry Worker”, a female-dominated job, were both assigned a point count of 97, making them comparable jobs. Yet the top monthly salary of truck drivers was $1,574, and the top monthly salary of laundry workers was only $1,114 (this is in early-80’s dollars.)

Note that “comparative worth” is not the same thing as “equal pay for equal work.” An equal pay for equal work scheme would compare male truck drivers with female truck drivers and attempt to equalize the pay rates for male and female truck drivers.

It would surprise me greatly if the Washington State study attempted to quantify a factor like time spent away from family members. And furthermore, any quantification of that factor could be wrong, as different individuals could attach different values, either positive or negative, to spending more or less time away from their respective families.

It never occurs to sociologists that perhaps the real “worth score” of a given job is simply the wages which an employer is willing to offer for it. In today’s economy it would be fiscal suicide for an employer to engage in policies which would raise his labor costs by half. Yet, that is the cost of hiring men, if indeed it would cost an employer 66 cents to pay a woman for every dollar they would pay a man. If employers can get away with hiring women at 2/3rds of the cost of men, why would anyone ever hire men? The fact that men are indeed hired and work on a daily basis would seem to punch a hole in that theory.

Comparable Worth (1)

Comparable Worth (1) contains a decision by Judge Jack E. Tanner of Tacoma Washington. It has been well summarized by Grumpy Old Man at As the Top of the World Turns, who was in charge of analyzing (1):

The State of Washington had made the mistake of commissioning studies by social “scientists” of the comparable worth of various civil service jobs. Not surprisingly, the studies had concluded that based on their criteria (things like physical effort and training required), predominantly female civil servants were underpaid compared to male ones.

Unwilling to cut anyone’s pay, and faced with a depressed economy and budget constraints, Washington didn’t implement the recommended increases. The public employee union sued. Judge Tanner ruled in their favor, holding that the Civil Rights Act of 1964 forabde not only “disparate treatment” (paying men in the same job more than women), but “disparate impact” (adopting policies that were neutral on their face but affected men and women differently).

Nothwithstanding the bad economy and the budget constraints, Judge Tanner ordered the State to make up the pay differences and proposed to appoing a Special Master to decide what employees would receive the court-mandated wage increases.

This decision will be referred to as AFSCME v. Washington (1983).

Comparable Worth (2)

Comparable Worth (2) starts out with a copy of the Supreme Court decision County of Washington v. Gunther on pages 2-23, (although it appears to be missing the final page or pages). In County of Washington v. Gunther, the Supreme Court ruled that female prison guards hired to guard female prisoners could file a discrimination suit under Title VII, alleging discriminatory pay. In a 5-4 decision, the SC decided that “the Bennet amendment” (703(h) of Title VII of the Civil Rights Act of 1964) could be interpreted broadly enough to encompass their suit, so it could go ahead.

AFSCME v. Washington (1983) went up on appeal to the Ninth Circuit, and here is where Roberts comes in to the picture. Should the White House get involved and let the Ninth Circuit know one way or the other what it thinks about the issue? (The Ninth Circuit eventually reversed Judge Tanner in AFSCME v. Washington (1985) and the case was not appealed.)

So on pages 24 - 25 of (2), we come to the first Roberts memo. It appears to be incomplete, unfortunately. In the memo, Roberts starts out with an overview of AFSCME v. Washington (1983), leading into an overview of the theory of comparable worth in general. He explains the basis on which Judge Tanner decided AFSCME v. Washington (1983), and then goes on to explain how Judge Tanner was mistaken in applying County of Washington v. Gunther to this situation.

Roberts then goes on to bash the theory of comparable worth in general. I’ve copied his full quote below:

It is difficult to exaggerate the perniciousness of the “comparable worth” theory. It mandates nothing less than central planning of the economy by judges. Under the theory judges, not the marketplace, decide how much a particular job is worth, and restructure wage systems to reflect their determination. The marketplace places a higher value on the work of truck drivers than laundry workers, but Judge Tanner, under the guise of remedying gender discrimination, concluded that both jobs are “worth” the same and ordered that workers in both groups be paid the same. This is a total reorientation of the law of gender discrimination. Under the accepted view, if a qualified woman wanted to become a truck driver, and was denied the opportunity, or was given a job but paid less than a male truck driver, she could seek relief under Title VII. The comparable worth theory, by contrast, offers relief to any group of workers (either predominately female or male) that can convince a judge that their jobs are intrinsically “worth” more than what they can command in the marketplace.

This memo ends early, with a tantalizing quote from Roberts on Judge Tanner:

A good sense of the type of jurist with which we are dealing in this case is conveyed by the following quotation from the opinion:

Nothing particularly earth-shattering here, although it’s all being used out of context to paint Roberts as misogynist and anti-women. The most important thing to note here while analyzing Roberts’ remarks is that the theory of comparable worth is not merely a method by which we could right past wrongs done to women, nor is it an effective anti-discrimination measure. Implementing a system of “comparable worth” is simply implementing socialism by another name (as Power Line has noted here). Which jobs are compared to other jobs, as well as what the ranking system is and which factors are taken into consideration would all be determined entirely by government entities and are essentially arbitrary. Comparable worth is therefore wage controls hiding under “pro-women” clothing. Keep that in mind while looking at Roberts’ remarks on the subject.

And that’s all there is to that particular memo.

Page 26 of the PDF is an article from Time Magazine about comparable worth. Page 27 is an article from the Wall Street Journal about comparable worth, which appears incomplete.

The next issue which Roberts deals with in (2) is a letter by then representatives Olympia Snowe, Claudine Schneider and Nancy Johnson. The letter can be found on pages 32 and 33 of the PDF. It is strongly in favor of the comparable worth decision and the representatives “strongly urge that the Justice Department refrain from involvement in this case”. At the time the letter was written, AFSCME v. Washington was still before the Ninth Circuit.

The letter got routed to Nancy Risque, who asked Fred Fielding (Roberts’ boss) for guidance as to what the response should be (pages 30-31).

Here are Roberts’ comments on the letter:

As to substance, the Snowe-Schneider-Johnson letter supports the comparable worth decision, quite frankly stating that equal pay for equal work is not enough. The letter contends that more is required because women still earn only $0.60 for every $1 earned by men, ignoring the factors that explain that apparent disparity, such as seniority, the fact that many women frequently leave the workforce for extended periods of time, etc. The letter contends that women stand to gain substantially from Judge Tanner’s decision, which is doubtless true as a conclusion but unavailing as an argument. I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept. Their slogan may as well be “From each according to his ability, to each according to her gender.”

The final line is already being cited as an example of Roberts’ anti-women views, as this op-ed from Robert Parry puts it:

When asked about Roberts’s memos, Olympia Snowe – now a U.S. senator – responded diplomatically. “Hopefully, 21 years later, Judge Roberts possesses an openness with respect to issues of gender-based wage discrimination,” Snowe told the Post.

But the larger point is that Roberts – while in a position to influence policy inside the White House – opted for a knee-jerk right-wing position on an important discrimination issue facing the American people.

The memo ends with speculation on Roberts’ part on what the Justice department will do. He thinks they are leaning toward intervening before the Ninth Circuit. (Ultimately, the Reagan administration did not get involved in AFSCME v. Washington (1985).)

Roberts also drafted a memo for Fred Fielding which summarizes his statements above (page 29). I have copied the relevant section here:

The question is currently under review at the Department of Justice, and accordingly the most we can do in response to their letter is thank the Congresswomen for their views and assure them that they will receive every appropriate consideration.

It could be argued that Roberts’ dismissive treatment of the Congresswomen in the final line of his memo is at odds with the memo he drafted for his boss, suggesting that “they will receive every appropriate consideration.” I do not know who else in the Reagan administration saw these letters and memos, but it’s worth pointing out that Snowe, Schneider and Johnson did get what they wanted: the Reagan administration did not intervene in AFSCME v. Washington (1985).

Stay tuned for my analysis of Comparable Worth (3).

This entry was posted on Sunday, August 21st, 2005 at 4:19 pm and is filed under politics. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.