While serving as New Hampshire attorney general, Supreme Court nominee David H. Souter fought federal regulations requiring the state to submit a racial breakdown of employees because it made the state "color conscious rather than colorblind."
In a strongly worded petition filed with the U.S. Supreme Court in 1976, Souter urged the justices to reverse a federal appeals court ruling that upheld the Equal Employment Opportunity Commission requirement because it "makes a mockery" of the constitutional principle of colorblindness and treats "every employer as if he were a suspected bigot."
The Supreme Court rejected the petition and declined to review the EEOC regulation, regarded by civil rights lawyers as an essential tool in combating employment discrimination. Then-Solicitor General Robert H. Bork defended the EEOC requirement and opposed New Hampshire's bid for Supreme Court review.
The petition was filed as a result of a dispute between Meldrim Thomson, then the state's Republican governor, and the Nixon and Ford administrations. Thomson refused to fill out the forms and instructed state officials to use instead the word "American" to designate the ethnic category of all state workers.
The federal government then filed suit against New Hampshire, the only state during that period to balk at the requirement. Souter unsuccessfully sought High Court review of the case after the state lost before a federal district court and the appeals court on which Souter now sits.
Souter's views on civil rights are expected to be scrutinized during his confirmation hearing before the Senate Judiciary Committee next month. As a judge on the New Hampshire Supreme Court, he made few rulings on the subject and one of the few indications of his views has been a newspaper report of a speech he made while serving as attorney general in which he attacked federal affirmative action programs as "affirmative discrimination."
EEOC Chairman Evan Kemp Jr. said yesterday that the forms opposed by Souter, which are filed by states, local governments and companies with more than 100 employees, are "quite important." Without them, he said, "I think that we would be in the dark when investigating cases."
Kemp said the forms are necessary because "there had to be some way to measure to see if we were making progress in this area" and said that "to have a truly integrated work force you have to be color conscious."
The state's brief before the High Court, filed in the name of Souter and Assistant Attorney General Edward A. Haffer, complained that the forms violated Title VII, the federal antidiscrimination law, as well as the Constitution.
The requirement "induces employers to think in terms of color, rather than merit, and the natural consequence of thinking in those terms is to act in those terms," the brief said.
"We are told in effect that, as a matter of universal policy of indefinite duration, all employers are to become, and remain, color conscious in order to become, and remain colorblind," the brief said. "This is government by non sequitur," it added, describing "such illogic" as "doublethink . . . at least eight years earlier than George Orwell expected."
Souter argued that forcing the state to "eyeball" the skin color of its employees violated their privacy rights. "With similar voids in logic, the government could profess to justify . . . reports on the frequency with which persons have psychiatric treatment or the frequency with which they have sexual relations," the brief said. Governmennt "cannot lightly intrude into anything which is a matter of individual privacy, and this applies no less to racial and ethnic background than to psychiatric needs and sexual habits."
Haffer, the other lawyer listed on the brief, was on vacation and could not be reached, his office said. In a telephone interview, Thomson said he could not recall discussing the issue with Souter but added, "I know he did not discourage me" from pursuing the case to the Supreme Court.
In a newspaper interview after being named attorney general, Souter said, "It would be irresponsible for the attorney general to support any state agency if he felt that what they were doing was clearly wrong."
Civil rights lawyers said yesterday that they were troubled by Souter's arguments.
"That is the statement of a person who has no interest whatsoever in equal employment opportunity," said Clifford Alexander, chairman of the EEOC from 1967 to 1969. "It is a fatuous argument raised by people who are fundamentally against giving equal employment opportunity."
In an argument that echoes the debate over the civil rights bill now before Congress, Souter contended in the brief that forcing states and other employers to collect such data would lead to quotas, which are prohibited under Title VII.
"Quotas are an impermissible end," the brief said. "And, accordingly, so too should be the means to that end. Yet the regulation in question unmistakably institutionalizes such a means; indeed if quotas were permissible, the regulation would probably be called a perfect enforcement tool."
Souter, visiting various Senate offices yesterday, ducked questions of any kind, saying in response to a query about New York Yankee owner George Steinbrenner, "I wouldn't touch anything that hot."