I've been seeing this sort of argument a lot (from white men, naturally), so I feel the need to sketch out why affirmative action is a valuable tool in countering today's racial discrimination:
First, racial discrimination is not ONLY caused by crazy white guys wearing white hats. Racial discrimination is often caused by things we don't associate with race at all. For example, in most cities there are both rich and poor parts of town. Because school systems are operated largely on state tax income, schools in wealthy areas often have more money to spend on education than those in the poor areas. It all makes sense and we understand why this is so. There is no disciminatory intent here. However, now consider that the rich areas are largely white and that the poor areas are largely minority. It must be noted that there are explanatory reasons for this segregatory phenomenon (White Flight, for example), but that's probably outside of my scope here. What results from this scenario is that minority children are subjected to a lower quality education than white children, on average; in other words, there is a discriminatory impact that has resulted from something seemingly benign (paying for schools with local tax income). In sum, then, this is an example in which it is the actual structure of society itself that causes discrimination, as opposed to some nefarious racist intent.
So, if modern American society, by its very structure, causes discrimination along racial lines, it makes sense that we should try to counter-balance this effect using some sort of affirmative action program where we provide extra support to the minority children to level the playing field when the children graduate from the unequal schools (such as admitting more students from the poor area of town to college, for example).
Obviously, given this particular example one may concede the point that affirmative action is useful, but counter that it would make sense to base it on economic standing instead of simply race. If it's only the poor kids who are disadvantaged, why not give poor kids preference to even these things out? In the bubble of this specific example, economically-based affirmative action would surely also be an effective response, so this is a fair criticism. In response, I would suggest that educational opportunity is only one small area in which there is a discriminatory impact and much other discrimination actually fall squarely along racial lines, so affirmative action based on race makes sense as a better heuristic to level the playing field, generally. Preferential treatment along both racial and economic lines, of course, would also make sense.
When John Roberts said that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race," he made one of two implicit assumptions. First, that there is no inherent racial discrimination in society, so the only discrimination on the basis of race is the affirmative action programs we actively create. Were this assumption true, it would be a powerful argument, because government-sponsored discrimination on racial grounds IS certainly polarizing and likely to cause some amount of racial tension. However, this assumption is demonstrably false, as shown in the example given above. Second, even if there is inherent racial discrimination, it will end in time if we do nothing about it. I find this unlikely when the problems are structural. In my view, the failure to disrupt the status quo actually entrenches it. A good analogy would be to a retirement account. If one person starts investing early and another later, even if they make identical deposits on any given day, the compounding effect will make the first person far richer.
Either assumption probably give Roberts too much credit, though; I truly believe that the line Roberts uses is simply a catchy PR slogan designed only to persuade emotionally but not logically. I think Roberts is fully aware of a racially discriminatory impact in society, but does not feel it should be altered because he and his family benefit from the status quo. A similar line of reasoning was used by Thomas Jefferson about slavery, stating that "as it is, we have the wolf by the ear, and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservation in the other."
Bringing this post full circle, I similarly believe that the critics who recite the Roberts line to disparage the use of race as a criteria in selecting a new Federal Circuit judge are doing so out of naked self-interest and not out of some actual belief that it will repair racial disparities in society. Perhaps these people think there actually are no disparities, but I doubt it. The patent lawyer community is very largely white and male and they'd like to keep the trophy jobs to themselves.
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