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The stealth appointee

JOHN ROBERTS is poised to win confirmation as the next chief justice of the United States because, among other things, he knows the law cold. But after one of the most near-perfect, resume-punching voyages ever to the Supreme Court, there is almost no evidence of his understanding of justice.

This has nothing to do with the overwhelming odds of his confirmation by the Senate. It does, however, have something to do with how his possibly routine elevation should be received.

To illustrate, I have no doubt that his encyclopedic knowledge of constitutional history includes a detailed understanding of Plessy v. Ferguson, the landmark abomination that enshrined segregation in 1896 for another 58 years under the delusional mantra of ''separate but equal." It wouldn't surprise me if Judge Roberts could quote sentences from Justice Henry Brown's majority opinion on behalf of eight brethren and even from John Harlan's passionate dissent.

But I doubt very much that Roberts knows beans about Homer Plessy, and I can imagine him being tripped up even if asked Plessy's first name. It is that human face of justice, or injustice, that concerns me, and, from the available record anyway, has never interested Roberts.

Plessy was a New Orleans Creole, born in the middle of the Civil War and an activist by the time he agreed in 1892 to test Louisiana's law requiring segregation aboard trains. He was arrested for refusing to leave the ''white" car (shades of Rosa Parks 63 years later), jailed, and held on a bond of $500, very stiff for those days. It mattered not a whit to the racist authorities that his heritage included but one great-grandmother of African descent; that's all it took to subject him to racial discrimination.

Plessy made the ridiculous, for that period, contention that the 13th Amendment made him free and the 14th gave him the same rights as anyone else, which no state could abridge. After losing that argument four years later, he lived out his days in New Orleans; he was a shoemaker by trade. Plessy died in 1925.

Around here, it is chic to consider Roberts's confirmation doubly likely because he is set to replace William Rehnquist instead of the less predictably conservative Sandra Day O'Connor. Rehnquist's recent death removed the last figure from the court who had a link to the shameful civil rights days. As a Roberts-like genius fresh out of law school, Rehnquist wrote a personal memo to the justice for whom he clerked, Robert H. Jackson, arguing that the Plessy doctrine should be upheld in the set of school segregation cases before the Supreme Court in 1953.

Fortunately, neither Jackson nor a unanimous court agreed with Rehnquist's segregation advocacy in the decisions grouped under the title of Brown v. Board of Education. But it came back to bite him when he was considered for associate justice in 1971 and then chief 15 years later. The credibility of his wiggling answers that got him off the hook is still heatedly debated.

Perhaps it is a measure of how things have changed that while it is generally considered intrusive to ask a Supreme Court appointee how he might rule on actual or hypothetical cases, there are exceptions, and fealty to the Brown decision has been one of them for years.

Roberts will have no trouble passing the litmus test. But his passing of it will mask the long record of his fealty to the true purpose of conservatism in civil rights for well over a generation -- the blocking of remedies to achieve broad desegregation and promote genuine integration and equal opportunity. His paper trail shows consistent fealty to the sideshows over affirmative action, ''quotas," and other manifestations of the effort to restrict civil rights gains as threats to white people.

In an interesting poll last week, the Pew Center found that only 18 percent of the public is paying very close attention to the Roberts ascendancy, as opposed to more than 70 percent who were very closely following Hurricane Katrina and its embarrassing aftermath.

In truth, the two stories should be linked. The hurricane and the different treatment accorded different victims of it exposed more than weak levees and degraded wetlands. It also exposed the institutional factors that make one-fourth of New Orleans officially poor as well as nearly 40 million other Americans -- some of them based in economic injustice, but some of them clearly racial, as anyone with a TV set could see this month.

Roberts's record is that of a defender of these arrangements, which will put him in the mainstream of Supreme Court actions going back a generation. My guess is that the more Americans know about this era on the court, the less they will like it -- hence, for example, the effort to close off the records of Roberts's Justice Department tenure under President Bush I.

Barring a documentary bombshell, Roberts's confirmation should be the occasion of a sad shrug. Homer Plessy met his equivalent more than a century ago.

Thomas Oliphant's e-mail address is

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