Politics:
Of Hooks, On and Off
The
Atlanta Journal-Constitution gives a little too much credit to the Supreme Court, and worst of all Justice
Clarence Thomas. The door gets pushed open just enough to work out the details about judges, justice and how the Republicans could get away with some serious murder this summer.
The AJC editorial sounds like an item in search of a point. The fact that the Supreme Court ruled in favor of a victim of discrimination, over the protestations of the Bush Administration and probably a pile of
amici who wanted to see it go the other way, shouldn't be news. In the courts (and especially that Court), it shouldn't be remarkable when the interests of a regular citizen wins out over those of corporations and their well-financed pals in government. Indeed, the courts have the best chance of remaining free of the nettlesome web of money in politics, which is why elected judges make the constitutional hairs on the back of my neck stand on end.
But it is news, because this Supreme Court has been one of the worst when it comes to questions about civil rights or the rights of individuals, women, gay men and lesbians, workers and people with disabilities. In case after case, this Court has given amazingly short shrift to those rights, often to the benefit of corporations, the government, state governments and just about anybody else who could make it happen with a checkbook faster than a vote.
That's because this Court is already deeply divided on a frightening axis. The battle lines on this Court are jarring. To look at these justices, you would think that everyone was from the same generation. But examine their rulings, their sparse speeches and their dissenting opinions (especially the dissenting opinions), and you can see that the difference between the all-too-often 5-4 breakdown of judges is like the difference between 1890 and last week. This division, like a tesseract, splits the judges on fundamental questions not only of constitutionality, but America's future.
It's important to caveat this: the Court's progressive wing is hardly a batch of new-agers sitting around jamming to Phish and trading crystal mediation tips during yoga class. They are, however, members of the liberal class of Americans who passed through the sixties seeing the civil rights advances of the times as an important final focusing of America's equality lens. To these jurists, that experience tells the story for how the Constitution is to be read. They believe that "Congress shall make no law" means no regulation, no guideline, no tacit system, no de facto back-channel set up, nothing. They believe that "all men" means every damn one of us. They see the freedoms people were asserting for themselves as something everybody deserved.
The other side of this Court sees all this as badly out of control. Listen to the the right wing echo-chamber and nothing is more clear than the shrill ring of unevenly-applied morality. They deal in a world of negative space, so they never have to discuss what they are preserving, only what they are attacking. None of those voices, from the Jewish World Review to Focus on the Family spends as much time talking about spousal abuse and child abuse as they do about the "homosexualist" agenda or the threat presented by feminism. What they stand for is the freedom to be white, straight and wealthy, or some reasonable combination thereof. They don't mind non-white people, as long as they're aggressively straight and don't mooch. They don't mind a gay person, as long as, apparently, they don't act on their gay impulses, and don't mind being pointed to as the
official gay mascot of any particular cause until that gay person's usefulness is expended. The poor are fine, as long as they are strongly family focused, straight and milky-white, and not asking for anything.
To this Court, these people are their stars. They see their world as mostly interpreting the Constitution strictly in service of those people, because those people match the demographic for whom the document was originally created. (Not surprisingly, the founding fathers were white, straight and rich.) They try their best to see the clearest path to locking in a safe route to protecting the wealth, whiteness and straightness of the dwindling, but still powerful homogeneous red states portion of this country.
Which brings me to Mr. Justice Thomas. It tests the bounds of the word "disingenuous" to sing the praises of Clarence Thomas for authoring a 9-0 opinion opposing text-book discrimination. Thomas, along with his pal
Antonin Scalia, have authored majority, dissenting and concurring opinions that would knock the socks off most mainstream constitutional scholars. They have written against rules that even the playing field for candidate eligibility, which generally address racial discrimination. They have written against civil rights measures that protect minorities disenfranchised through land annexations. They have opposed measures that protected minority rights in redistricting plans. They even wrote in support of making it impossible to challenge the exclusion of jurors because of race in civil cases. Thomas even argued in 1995 that the Supreme Court made a mistake in its ruling on Brown v. Board of Education.
Perhaps the J-C was grasping at straws. Or perhaps they were choosing not to see the forest for this spring's batch of trees.
The Court has several high-profile cases remaining. Before those are run down, let's look quickly at some surprising decisions from this term. Recently, the Court upheld the Family and Medical Leave Act for state employees, in a decision written by Chief Justice
Rehnquist. Although it looks like a victory against the nutbar states' rights philosophy everybody's already tired of, Rehnquist's decision worked the Court's support for FMLA to the narrowest point possible, ensuring that future challenges to the law won't have the decision in Nevada v. Hibbs to trip over on the way back to the Court. On a cross-burning case earlier this year, the Court again appeared to rule in a rights-minded framework, finding that the act of burning a cross in an inter-racial family's yard is one of intimidation, not one of protected free speech.
But now what remains? The challenge by two consenting adults who were dragged from their homes in the middle of the night and arrested for having sex. Their crime? Being gay. Of course, the Bush administration has spoken out on this case in the disturbing proxy war of crappy commentary of the past few months.
Rick Santorum discussed the case, famously, with an AP reporter, and made reprehensible comments, in response to which
Ari Fleischer said that Santorum was "inclusive." Bush then nominated Alabama Attorney General
William Pryor to the federal appeals court. Pryor's brief in the case went Santorum one further, tacking on necrophilia and paedophilia to Santorum's little chat about bestiality et al.
What else? Attempts by two white students to destroy America's pre-eminent method of dealing with the long shadow of discrimination, all because they didn't get precious slots at the University of Michigan. Poor little ones! Bush's record on these issues hasn't been much better. In addition to destroying two countries previously belonging to people of color (which doesn't play well in diversity circles), he has moved his mouth alot about inclusiveness, but doesn't make sounds when it counts. He's nominated fewer Hispanic judges than his predecessor (though one he has nominated is secret-Scalia
Miguel Estrada), he has taken pot-shots at gays in the Justice Department, and he's rounded up an assload of Muslims and harassed, abused and deported most of them. So how does he face down a challenge to Affirmative Action? File a brief essentially calling for an end to the landmark civil rights measure, over the objections of at least one and probably two of his senior staff members, who happen to be African American.
This is the bait-and-switch, take-a-stand and move your fan base approach that Bush has nailed down. This summer could well play like this: The Court drops a couple bombs, and ends the term soon after with the stunning retirement announcement of one or two justices. The media is apoplectic, and the Courts attack on diversity and gay rights gets lost in the shuffle. Point to team Bush. Dems have a half-dozen irons in the fire filibuster-wise, all while half of them are trying to figure out how Howard Dean keeps getting thousands of people to show up at bars and hipster movie theaters. Skeptics inside the party (and sabateurs like that bum
Zell Miller) immediately say "rollover, we can't win!"
So we've got filibusters going against
Priscilla Owen, Miguel Estrada, maybe
Carolyn Kuhl, maybe
Bill Pryor. Then they've got to find a way to keep the Supreme Court from ending all rights and freedoms as we know them by taking on one or two forty-something jurists right out of the stone ages who will warm those seats with right-wing asses for forty years each.
It seems Bush can't lose. When I first drafted this last night, I wrote "Bush can't lose." The offensive position here is like trapping your enemy at the bottom of a valley, sealed off from everything. What he doesn't win on, he gets credit for taking a stand. What he wins on, is almost exclusively gifts for the base, like right-wing judges who believe America is practically being overrun by gays and pot-smoking, loitering civil rights attorneys with nothing but time and blue paper with which to file law suits.
What's the answer? First and foremost, it's taking away this foolish notion that anything this Court can do serves the interests of ordinary Americans. Next is the very basic concept, as explained by
Matt Miller on NPR yesterday morning, of denying Bush and the Rs any kind of easy victories. They already get everything they want. We keep taking what we can get, less than we want but "hey, it's something." No more! We take only what we set out to get.
This administration and some of its ideological twins in Congress have eliminated compromise as a useful tool. The rule book of negotiations was shredded by the Rs a while ago, and we're still trying to pick up the pieces and make some kind of deal happen. It's over.
Judges will be the pivot, no doubt. Pryor, Estrada, a Supreme Court elevation or nomination are all in the cards. The case glowingly referred to as a victory for civil rights and Justice Thomas by the Atlanta Journal Constitution strikes me now as the scrap of food we're all supposed to be happy to receive. In reality, this tiny little victory is a mere scintilla of progress and should not be recognized as meaningful. This is the bait on the hook. We're going to see the most aggressive assault on rights and freedoms through the attempt to install judges in lifetime seats who will drill America right into the goddamn stoneage. Every inch we give now will be a right my future son won't have, a freedom I will think about wistfully since it's long gone. Don't take that bait, and don't give up an inch. The consequences are too great.
