by Sunil K. Sharma
A constant refrain from panicked supporters of Democratic Presidential candidate Al Gore is the claim that a Bush presidency will usher in conservative barbarians to the Supreme Court, who will overturn every cherished civil liberty, particularly Roe v Wade, plunging the country back into the Dark Ages. We’ve been hearing this one every four years for nigh onto thirty years.
Advocacy groups and activists such as the National Organization of Women (NOW), Eleanor Smeal’s Feminist Majority, the National Abortion Rights Action League (NARAL), Gloria Steinem, and the lib-“progressive” pundits from such sell-out rags as The Nation incessantly evoke the Supreme Court issue like parrots on command, to try and scare supporters of Green Party Presidential candidate Ralph Nader into backing Gore and the Democratic ticket. Indeed in the final week before the elections, NARAL is dishing out over $500,000 for television ads making the idiotic claim that a vote for Nader is a vote for Bush, and a vote to kiss abortion rights goodbye. In effect, the libs have been turned into a public relations arm of the DLC-dominated Democratic Party. Did the Democrats give NARAL the money for the ad campaign? Corporations? Or is NARAL squandering its members contributions to attack a man who has for over four decades fought a relentless battle on behalf of the interests of most of the same folks who give to organizations like NARAL, NOW, etc? The basic premise of these shrill alarums is that if Gore were President, he would select justices that would protect abortion rights, civil liberties, and all things dear to liberals. and
Bush’s Texas Supreme Court
Much ink has been spilled by the NOW-NARAL-Liberal Advocate-Supreme Fear crowd positing the certainty that any Bush Court appointee will be as retrograde as he. They point to Bush’s Texas Supreme Court appointments as proof of the evil that looms ominously in the background, waiting for the chance to ensnare us. It’s a sad day when one has to go to the New York Times (rabidly anti-Nader) to find a little factual relief from the doomsayers.
A Times study (July 9, 2000) reports that “a look at Mr. Bush’s record in Texas shows that he has appointed justices who have had a moderating influence on the Texas Supreme Court, often regarded as among the most conservative and pro-business in the country. Bush has appointed four of the court’s nine justices and has been a political patron for a fifth.” The Court has generally upheld abortion rights. “By the Supreme Court’s 1998-99 term, the liberal judicial watchdog group Court Watch found that Mr. Bush’s appointees were ‘eliminating’ the excesses of the G.O.P. old guard.’” The President of the Texas Trial Lawyers Association, a group that has over the years been highly critical of Bush and the Texas Court, stated that while the court isn’t exactly to their taste on consumer issues and damage claims, Bush’s appointments had started the process of moving the court back toward the center.
The Texas Supreme Court’s most stunning ruling came earlier this year when it ruled 6-3 that a 17-year-old high school senior could obtain an abortion without her parent’s consent. “Social conservatives” throughout the state were “stunned.” “It was, after all, appointees of Gov. George W. Bush who took the lead on the issue,” the Times observed.
Bush has promised that he will not apply an abortion litmus test to any Supreme Court nominee. Whether Bush’s promise means anything is of course questionable. However, three of his Texas Court appointees said in separate interviews with the Times that they were never asked about their views on specific issues such as abortion during their interviews with the governor. “Instead, they said, the governor asked open-ended questions about judicial philosophy to determine how they might view their roles as justices.”
Scalia and Thomas: How one Gruesome-Twosome Admires Another
Bush has singled out Antonin Scalia and Clarence Thomas, the most fanatical right-wing, anti-abortionists currently on the bench, as the type of model judges he would select for the Supreme Court. Gore admonished Bush for this in the televised “debates”, saying that if he were Prez he would select justices who would uphold Roe v Wade.
Yet how are we to square this with the fact that when Scalia the Hun was nominated by Reagan in 1986, every Democrat in the Senate – including Gore and his VP selection Joe Lieberman – voted to confirm him? The vote was 98-0. Scalia may have tried to keep a low profile about his extremist views during his confirmation hearings, but his ultraconservative record in the lower courts was well known and available to anyone interested in examining it. Sadly enough, observed Supreme Court scholar Peter Irons, the “pro-choice” lobby “did not mount a campaign against Scalia, despite his open desire to overrule the Roe decision.”
As for Clarence Thomas, it was a Democrat-majority Senate that confirmed him in 1991, Anita Hill debacle and all. Gore and Lieberman initially supported Thomas, and their enthusiastic praise for him is a telltale indicator of the sort of person Gore-Lieberman find worthy of appointing to the Court.
Almost a year after Thomas’s appointment to the Supreme Court, Gore told his fellow Senators, “Clarence Thomas is an impressive man with an astounding background.” “Even before his nomination to the Supreme Court, he was an inspiration to those who struggled against poverty and racism…. His life shows that adversity need not lead to life of quiet desperation, but can produce a strength of character that is a beacon for all who will follow…. I believe there is no question of Judge Thomas’ competence…He possesses a quick and incisive intellect. He speaks and writes with precision, power, and persuasiveness.”
Such words for one of the biggest bunglers ever to don a judicial robe. Thomas’s confirmation hearings revealed he had such a pathetic grasp of constitutional law, that one White House adviser who coached Thomas for the hearings called his performance “terrible.” Erwin Griswold, a highly regarded former Dean of the Harvard Law School, told the Senate that Thomas had “not yet demonstrated any clear intellectual or professional distinctions.”
Only late in the nomination game did Gore decide to oppose Thomas’s appointment. The reasons? Gore was perturbed by Thomas’s reference to some members of the Senate as “petty despots” (arguably the most intelligent thing to ever be uttered by Thomas), his lunatic belief in principles of the religio-legal theory of “Natural Law”, and because of Thomas’s evasiveness in answering a direct question on whether or not he believed Roe v Wade was constitutional.
Lieberman, however, chastised his fellow Senators who were critical of Thomas’s rabid adherence to “Natural Law”, parting company with most liberal and constitutional scholars by giving aspects of it some endorsement. In Thomas’s view, Natural Law can apply to two other areas: abortion and separation of powers. Thomas openly endorsed a Heritage Foundation white paper that used a Natural Law approach to argue that a fetus was entitled to the full protection of the Constitution from the moment of conception.
An Abortion Litmus Test: Schizophrenia Rules
During Thomas’s confirmation hearings, questions arose over whether he had given assurances to his Bush administration vetters that he would join Scalia in attempting to overturn Roe. Lieberman attacked any such inquiries into the matter saying “I take Judge Thomas at his word, given under oath, that he has not reached a conclusion on the legal issues underpinning Roe versus Wade.” “Those who doubt that and assume he has passed a White House litmus test on the issue also have to assume that the next nominee would face the same testing . . . I find myself in the minority in suggesting that Judge Thomas and other nominees should express fewer, rather than more, opinions on controversial constitutional cases that have been heard by the Court, or are likely to be heard by the Court.” Due to pressure from Ralph Nader, Lieberman ultimately voted against Thomas’s nomination.
Despite Lieberman’s objections to applying litmus tests to judicial nominees, Gore clearly implied in the “debates” with Bush that he would only select justices who would uphold Roe. Coming from such a shameless prevaricator like Gore, the question arises whether or not he is really serious. During the 1992 campaign, VP candidate Gore was asked on a number of occasions if he supported a litmus test on abortion. The man was simply incapable of giving a straight answer, and his contortions are instructive today. What follows is an exchange between Gore and ABC Television’s “This Week with David Brinkley” host George Will (July 12, 1992):
Will: Yes, Senator, touching the abortion issue from another
tangent, Mr. Clinton has said that nominees that he would make to the Supreme
Court would support Roe v. Wade. Now that sounds awfully like a litmus test. I’d
like to know what you think of A.—having a litmus test, B.— the Pennsylvania
restrictions, such as parental consent and a waiting period before abortions,
and—do you think there should be any other litmus test? For example, would you
favor only appointing judges who believe that capital punishment is
Gore: I don’t think that the kind of discussion that you have with a Supreme Court nominee about the Constitution and the interpretation of the Constitution can take place without some kind of understanding of how these principles relate to the kinds of controversies that are before the country. I don’t favor a litmus test, no. But it’s impossible to look at the Supreme Court we have today and not to have a clear understanding of the fact that George Bush conducted his conversations with potential nominees in a way that gave him some feeling for how they were going to deal with some of the controversies before the country. You know, but they want to use issues that divide the American people. We want to put in place policies that bring the American People together.
Will: Senator --
Gore: and get it moving again.
Will: Clearly Reagan and Bush got Souter, Kennedy, and O’Connor wrong on the subject of abortion, if they did talk with them about it. Your running mate, Mr. Clinton, does say his nominees will support Roe v. Wade. Is that or is that not a litmus test?
Gore: Well, I believe that a clear reading of the Court’s precedents and the Constitution would lead a fair-minded justice to support the tradition of that line of cases, including Roe v. Wade. And I would like to see justices who read the Constitution in that way, but I would not like to see a litmus test.
Apparently, Gore seemed to be the only person not capable of realizing he was indeed applying a litmus test.
In 1995, Gore shot back at the opposition to Dr. Henry Foster’s nomination for Surgeon General, which centered mostly around Foster’s admission that he had performed abortions, rhetorically asking, “Are we to have views on choice become a litmus test in politics in America?” (Jewish Exponent, 2/24/95).
All the scaremongering about the Supreme Court belies a historical reality: that it is impossible to predict how a Supreme Court judge will rule on the basis of the ideological persuasion or party of the administration that selected him or her. Some of the most liberal Supreme Court Justices have been appointed by Republican administrations.
Justice Harold Blackmun, who wrote the majority opinion on Roe v Wade, was a Nixon appointee. The man who wrote the dissent against Roe was JFK’s pick, Byron “Whizzer” White. In the dissent, White sarcastically wrote, "The Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the foetus." Nixon’s other appointee, Lewis Powell Jr. (centrist-conservative) also voted with the majority on Roe v Wade, later telling his clerk that while he couldn’t find a constitutional objection to Texas’ anti-abortion laws (what the Roe case was about), he nevertheless felt in his “gut” that these laws were “atrocious.”
Another ardent defender of abortion rights (though lousy on just about everything else) is Sandra Day O’Connor, a Reagan appointee.
The biggest surprise of the past decade has been George Bush Sr.’s 1990 pick of David Souter. Souter, recommended to Bush by his boorish Chief of Staff John Sununu, Attorney General Dick Thornburgh, and White House Counsel C. Boyden Gray, was widely expected to be another conservative addition to the Court. It was also widely believed that Souter would join the Rehnquist-Scalia-Thomas-White anti-abortion bloc in providing the decisive fifth vote needed to overturn Roe in the landmark 1992 case of Planned Parenthood of Southeastern Pennsylvania v Casey. To the horror of abortion foes, Souter rejected the Court’s conservative wing, and joined the majority in upholding Roe v Wade, co-authoring with Justices O’Connor and Kennedy the controlling opinion (to which we shall return). Since then Souter has moved leftwards, now standing as the Court’s second leading liberal. All the majority votes in the 5-4 decision came from Republican appointees.
The current liberal champion on the Court is John Paul Stevens, Republican President Gerald Ford’s selection. Ford wanted someone who was ideologically like-minded, and the moderate Republican Stevens was professionally perceived to be a legal conservative. However, he has been a consistent liberal vote: civil rights for blacks, children, and prisoners; voting rights; separation of church and state; strongly pro-choice, etc. Stevens was the only Justice to rule against two oil companies in a recent case.
Going back into history, Benjamin N. Cardozo, Republican Herbert Hoover’s selection, joined the Court’s liberal wing consisting of the great Louis Brandeis and Harlan F. Stone (a Coolidge appointee), generally voting to uphold state and federal laws designed to aid and protect workers.
Two of the most liberal Justices in the post-WWII era, former Republican Governor of California Earl Warren and William Brennan, were selected by Eisenhower. The Warren Court (1953-1969) was the most relatively radical Supreme Court in American history.
The Warren Court, extended constitutional rights to the most despised and disadvantaged members of American society in historic rulings such as: Brown v The Board of Education of Topeka (1954) ending racial segregation in the schools; of Gideon v Wainright (1963) that nationalized the Sixth Amendment’s guarantee of a right to counsel for indigents in criminal cases; of “the right to remain silent” in Miranda v Arizona (1966); of the “one person, one vote” principle in Baker v Carr (1962); of New York Times v Sullivan (1964) which held that a public official could not pursue vindictive libel suits against the press, thus expanding freedom of the press; of Yates v United States (1957) reversing the 1948 conviction under the anti-radical Smith Act of twelve “second tier” Communist leaders, and supporting the right to advocate the theoretical overthrow of the government by force.
On the Democratic side of the ledger, Woodrow Wilson’s choice of James C. McReynolds was a disaster. McReynolds, who previously had a reputation as a “progressive trust-buster” in Teddy Roosevelt’s Justice Department, turned out to be one of the most shrill reactionaries to sit on the bench. This anti-Semitic gas bag became, in the words of his biographer, the “loudest, most cantankerous, sarcastic, aggressive, intemperate, and reactionary representative” of the “Four Horsemen of Reaction”, the conservative wing of the Court that struck down nearly every New Deal program initiated in FDR’s first term.
Three of the four selections by Harry Truman, Harold Burton, Fred Vinson, and Sherman Minton were by all scholarly accounts judicial “failures”; former Attorney General Tom Clark was at best mediocre. Vinson died in 1953, which brought the fortune of opening up a slot that would be filled by Warren. The other three “Horsemen of Mediocrity” (the phrase coined by Justice William Douglas) proved to be a conservative nuisance in the Warren Court. They supported Truman’s Red Scare and anticommunist witch-hunts, which paved the way for McCarthyism, and they assumed a hard-line stance on criminal cases.
Whizzer White had been a terrible disappointment to liberals as Souter is to conservatives today. White had consistently voted in opposition to abortion rights, almost always took a hard-line government position in criminal cases (writing the dissent against Warren’s majority opinion on Miranda), and generally on the wrong side in First Amendment cases.
Bill Clinton’s two Supreme Court selections, Ruth Bader Ginsburg and Stephen Breyer, while pro-choice, are unflinching corporatists, particularly Breyer. Ginsburg, who had served for 13 years on the US Court of Appeals for the District of Columbia, regularly locked arms with her colleague Antonin Scalia in voting pro-business, and has continued that performance in the Supreme Court.
Stephen Breyer’s pre and post-confirmation career could be summed up as one of opposition to effective regulation of business. Indeed, shortly after Breyer was selected by Clinton in May of 1994, Ralph Nader told U.S. News & World Report that Breyer was “hostile to regulatory law enforcement” and that Clinton had thereby “locked the court into an anticonsumer, antiworker, antienvironmental mode.” Nader, unfortunately, was quite correct.
In the late 1970s, Breyer served as chief legislative counsel to Senator Ted Kennedy in the Judiciary Committee, and was the prime architect of airline deregulation in 1978. Breyer, using an allegedly “objective” mode of economic analysis, claimed that deregulation would result in increased competition, lower airfares, and more flexible airline service. As could be expected, the reality came to be the opposite: higher airfares, increased business concentration, reduced flight service and choice of destinations.
In 1979, Breyer authored an influential article in the Harvard Law Review, promulgating the tired business line that the best way to deal with environmental hazards was to implement market mechanisms in which companies could trade pollution “rights.” Alexander Cockburn explained it best four years ago: imagine a country was divided into zones, with a pollution index in each zone. Companies in each zone would be allowed to pollute within a certain permissible limit. If Company X used only 25 percent of its pollution “rights”, it would be allowed to trade its remaining 75 percent to Company Y in the same area that had already reached its limit. Though people next to Company Y will face higher levels of pollutants, Company Y would technically not be exceeding regulations.
Breyer’s theory was incorporated into the Clean Air Act of 1990. As Cockburn reports, “In May 1992, the Tennessee Valley Authority bought an estimated $2.5 million worth of credits from Wisconsin Power and Light, which didn’t need them. These credits allowed the TVA to exceed its limit of sulfur dioxide and other toxic emissions. On the receiving end was Shelby County, Tennessee, which . . . ranks 22nd among all counties for excess deaths from lung cancer. On the trading end, Sheboygan County, Wisconsin, ranks 28th from the bottom in the same category, an almost perfect reverse, mirroring the transfer of poisons from North to South.”
In the 1980s, Breyer served on the US Court of Appeals for the First Circuit. From 1978 to 1988, Breyer made a number of investments with a syndicate of Lloyds of London, the insurance giant that insures many companies against pollution liability. At the same time, environmental lawsuits were costing Lloyd's billions of dollars in losses and bankrupting investors. Starting in 1980, a number of US courts dramatically increased the claims against many Lloyd's syndicates, particularly asbestos-related claims and Superfund claims. These court decisions resulted in a shift of the burden of proof in an injury suit to the defendant. The US Superfund law was, in the minds of targeted firms, causing enormous damage awards against companies that were insured by these syndicates. Under British law, an investor is responsible for paying his share of losses. Even if that investor sells his shares, he remains liable for damages from when he was a member. Even after Breyer dies, claims can be made against his estate for eternity.
Judges have the power to shape and change American tort law, and therefore Breyer, faced with a potential loss of over $1 million, has a personal interest in any case that comes before him that deals with environmental and personal injury tort claims. By law, judges are supposed to recuse themselves from cases in which they have a personal interest. Breyer failed to recuse himself in eight Superfund cases during the mid-1980s. During his Supreme Court confirmation hearings, Breyer claimed he wasn’t knowledgeable about what type of investments Lloyds was involved in, and therefore felt no need to recuse himself. The majority of the Senate bought into his dubious defense.
As the Multinational Monitor editorialized, “The appointment of Justice Stephen Breyer marked the ascendancy to the top of the judicial hierarchy of the cruel practitioners of ‘risk-benefit analysis.’ Justice Breyer has involved risk analysis to belittle environmental and health and safety risks and to overstate the costs of protective measures.” Since Breyer’s appointment to the high court, he has continued to be a strong supporter of big business, his possible conflicts of interest completely ignored.
Indeed, Clinton’s appointments were intended to be safe bets in the face of a Senate Judiciary Committee headed by Republican troglodyte Orrin Hatch and a Republican-dominated Senate.
Ignored by the Supreme Court scaremongerers is the likelihood that any Gore selection will be no better than Clinton’s, especially given that the Republicans will probably continue to hold the majority in the Senate for the next four years, with Hatch continuing to preside over his judiciary fiefdom.
What the Gore flackers also conveniently gloss over is the type of judges Clinton has selected for the lower courts over the last eight years, an indication of what can be expected of Gore.
The annual reports put out by the Alliance for Justice (AFJ), the highly regarded liberal judicial watchdog group, during the Clinton years are telling. Six district court judges appointed by the Reagan and Bush administrations were elevated by Clinton to the important courts of appeals. “In contrast, Presidents Reagan and Bush did not elevate any judges in their terms previously appointed by Democratic presidents.”
AFJ’s 1996 survey notes that “Academics have observed that the Clinton appointees are more conservative than the Carter appointees that they are replacing. Robert Carp of the University of Houston has analyzed the number of ‘liberal’ opinions by judges and concluded that President Carter's appointees displayed a liberal philosophy 38% of the time while President Clinton's did 33% of the time. ‘Clinton judges on the average are moderate,’ Donald Songer, a professor of political science at the University of South Carolina recently explained.” These appointments were slightly more liberal than Reagan judges “but not more than Carter or Johnson judges."
Indeed, 1996 “began inauspiciously with Senators, the President and candidate Bob Dole engaging in a discussion over President Clinton's ‘judicial activism.’ Senator Dole eventually retreated from his attacks on the President's judges when confronted with new studies showing that Clinton judges more closely resemble those of Gerald Ford than of any other President, and that he had voted for all but 3 of the President's nominees. At that point, the subject of judicial selection was dropped from the debate in the presidential race. There was no talk of who should be on the courts or the candidates' visions of justice.”
President Clinton nominated less than a handful of public interest, union, antitrust, environmental, or civil rights lawyers or public defenders, opting most of the time for high-powered lawyers from corporate law firms. Clinton “has failed to restore balance to the courts after 12 years of strongly ideological conservative appointments.” AFJ cites William E. Leuchtenburg, visiting professor of legal history at Duke University Law School, who reports that Clinton "[h]as not taken advantage of his tenure as President to offset the decidedly ideological appointments that Reagan and Bush made in the 1980s."
Further, the Clinton Administration “rarely supported nominees under attack for judicial activism. Court observers said that if President Clinton had fought publicly for several nominees, it would have pressured the Senate to speed up confirmation of other judges.” Herman Schwartz, a professor at American University's Washington College of Law, stated: "Every time a President has fought, if it looks like he's fighting for principle, he wins politically. People would pay attention. Americans like an independent judiciary."
AFJ reports that Clinton simply “failed to make judicial appointments a priority” and “failed to use his bully pulpit”, leaving many seats vacant for long periods of time. In effect, as Temple University Law Professor David Kairys recently observed, Clinton “essentially turned over the selection of judicial appointees to a small group of conservative Republicans.”
Kairys makes the important point that the “Clinton administration's disappointing nomination record has been accompanied by an utter failure to challenge or engage conservative dominance of the public debate about law and justice. This is one of the most disastrous failures of the Clinton administration.” Gore, who is more conservative than Clinton, “is apt to be worse.”
Indeed, we get a little honesty from the White House itself on the matter. "Our mission is not to counteract the conservative appointments of the Reagan and Bush years," said White House Counsel Jack Quinn. Peter Erichsen, Associate Counsel to the president, described the Clinton judges as "militantly moderate," while Deputy Attorney General Jamie Gorelick reiterated this point, stating "The president is quite a conservative person, and the people he is attracted to judicially are moderate."
What is singularly disgusting about the Supreme Court Scare shock troops is the fact that their emphasis on the Supreme Court as some omnipotent force, coupled with their apparent ignorance of how positive social change has occurred throughout US history, has the effect of disempowering people. They are reinforcing people’s sense of powerlessness vis-à-vis the political arena.
To begin with, in the words of Supreme Court historian Henry J. Abraham, “the justices are well aware of two important facts of life: ultimately they do not have the power to enforce their decisions, for the purse is in the hands of the legislature and the sword in those of the executive; and the Court may be reversed by legislative action or by constitutional amendment.” In the event Roe v Wade was overturned by the Supreme Court, the matter would then move to the state legislatures, who then vote to accept or ignore the ruling. Pro-Choice activists are more likely to be successful on this level in pressuring their reps to not accept the High Court’s decision.
Herein is a third and more important fact of life missing from Abraham’s statement. The Supreme Court, while historically a reactionary institution, isn’t impervious to popular pressures from below. The Supreme Court does not operate in a vacuum. Among other things, it operates in the context of what Justice Oliver Wendell Holmes called the “felt necessities of the times.” As Justice Benjamin Cardozo eloquently put it, “The great tides and currents which engulf the rest of mankind do not turn aside in their course and pass the judges idly by.”
There is an important lesson to be learned from the monumental reaffirmation of Roe in the 1992 case of Planned Parenthood v Casey mentioned earlier. In the majority opinion authored by Reagan and Bush appointees O’Connor, Kennedy, and Souter, a history lecture is given about the dark days of Plessy v Ferguson (with its racist doctrine of “separate but equal”) and Adkins v Children’ Hospital (1923, in which the District of Columbia’s minimum wage for women law was struck down). These decisions reflected a world “recognized everywhere outside the Court to be dead.” The Court’s later decisions to overturn Plessy and Adkins were based on changed times and of new understandings of the world. “In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court's constitutional duty.” The authors warned that “a terrible price” would have “been paid if the Court had not overruled” its earlier decisions.
Some would argue that by this reasoning, Roe should be overturned because Justice Blackmun’s opinions rested on “basic flaws” that disregarded “the State’s interest in potential life.” However, Souter, O’Connor, and Kennedy answer that by pointing out that the flaws in the trimester system enunciated by Blackmun did not change “the factual underpinnings of Roe’s central holding” -- that a woman’s right to have an abortion is a protected “liberty” under the Constitution. Crucially, a generation of women had come to rely on Roe v Wade and its protection of abortion rights. Overturning Roe would upset their “settled expectations” thus provoking political turmoil far greater than that experienced during the decades of the abortion war; the “terrible price” to be paid for such a decision. Plessy and Adkins had to be overturned because of the many years of dedicated organizing and agitation by blacks and workers. Similarly, Roe had to be affirmed because of the mass mobilization and demands of women.
The Shrub is well aware of this too, and he knows very well that any attempt to overturn abortion rights will be political suicide for the Republicans. Bush, like other Republicans, has to pander to the Right for votes. Certainly many of these constituents want to turn back the clock and overturn a woman’s right to choose. Ultimately though, Bush, like Gore, has to answer to Corporate America if he wants to enjoy power and privilege. The majority of Americans is solidly pro-choice. Reversing Roe will only stir up a political and social hornet’s nest, and Corporate America is loath to see that. No surprise, then, why Bush has been toning down the anti-choice rhetoric lately, much to the consternation of Pat Buchanan, who has never taken Bush’s rhetoric on the topic seriously, and the dragon lady of the far-Right, Phyllis Schlafly, who supports Bush only because of her even bigger hatred for Gore. Schlafly apparently has shown great difficulty in concealing her contempt for Bush in her efforts to enlist support for him from the extreme-nutcase Right constituency she hails from. More to the point, retired Texas Supreme Court judge Bob Grammage, a Democrat, told the New York Times that Bush “doesn’t think in terms of courts. He doesn’t think in terms of lawyers. He thinks in terms of business.”
Crucially, David Kairys points out that there “are only two periods in U.S. history characterized by systematic or sustained judicial protection of civil rights, from about 1937 to 1944 and from about 1961 to 1973, both of which occurred in the context of mass popular support and successful legislative initiatives for civil rights (my emphasis). In these periods the Supreme Court established a democratic system of limited government and protection of individual rights available to people of ordinary means that was probably unrivaled in world history.”
“Instead of enthusiastically supporting the ‘activism’ that upholds our basic rights - and opposing the conservative Court's brand of activism that, for example, has gutted the Voting Rights Act and environmental protection laws - the Clinton Administration has for eight years acquiesced. While many progressives cling to the bygone days of the liberal Warren Court, the damage has already been done over the last 25 years, and the Clinton administration has been complicit.”
It is a travesty that many liberal and “progressive” commentators and advocacy groups are shamefully foisting this defeatist, top-down mentality upon the populace. They have learned nothing from history, and they are now, in effect, trying to deny every one of us the power we can potentially wield in the struggle for social justice. Those of us on the Left should not fall prey to such fearful hysterics.
Every decent thing that has ever happened in history didn’t come as gifts from the benevolent hearts of those in power. Victories were not won by a mass base that acted “pragmatically” and in deference to the allegedly lesser of two evils. What freedoms we enjoy and the extent to which we have a democracy are the products of long and bitter struggle. As the saying goes, “Your activism secures your rights -- nothing else.”
This is an important moment in American history. For once in a long while, there is an alternative to wasting our vote for either one of the two cheeks of the same ass. The Green Party campaign, in my view, is not simply about the man, Ralph Nader. It’s about the politics of hope, and a vote to further propel a growing mass movement working to beat back corporate power and to attain real democracy and social justice for everyone. Our work is only beginning. Positive social change is a constant struggle, but the future will be ours.