By Jon Krampner
As we mourn the loss of Ruth Bader Ginsburg and contemplate the probability that she will soon be replaced on the Supreme Court by yet the latest in a parade of reactionary wackadoodles, we are obliged to give credit where it’s due: neo-liberal Democrat Bill Clinton nominated her, just as neo-liberal Barack Obama nominated Justice Sonia Sotomayor.
But once you get past them, a pattern takes shape: the Democrats’ fecklessness through the years has been as much of a problem in bringing about the Supreme Court’s increasingly right-wing extremist nature as the Republicans’ ideological intoxication. This is yet another reason why we need a people’s party to fight for us, not a group of corporate-friendly centrist war horses who routinely knuckle under to smashmouth reactionaries.
Let’s take a stroll down Memory Lane, shall we?
In 1986, arch-reactionary Antonin Scalia was nominated by President Reagan and approved by a vote of 98-0. That included 47 Democrats.
In 1991, the Democrats held a 56-44 majority in the Senate. A twelve-seat majority, and they still couldn’t stop Clarence Thomas, who had served a grand total of 16 months on the U.S. Court of Appeals for the District of Columbia. And maybe he was on a traffic court somewhere before that. Oh, can’t forget that he sexually harassed Anita Hill while he was at the Equal Employment Opportunity Commission and Department of Education.
And who was the chair of the Senate Judiciary Committee who, more than anyone else, green-lighted Thomas’ ascension to the Court by not allowing Anita Hill’s corroborating witnesses to testify on her behalf? (Hint: the Democrats have nominated him for president this year, after squashing Sen. Bernie Sanders again.)
In 2005, John Roberts famously told his confirmation hearing, “My job is to call balls and strikes and not to pitch or bat,” adding, “I have no agenda.” Roberts and Sergeant Joe Friday (“Just the facts, ma’am!”) – two peas in a pod, right? But Roberts was well-known in Washington as an ideological crusader for conservative causes and wound up taking a bat to numerous hallowed precedents and important laws. Not the least of them was the Voting Rights Act, the demise of which was celebrated from one end of the Confederacy to the other. Although the minority Democrats didn’t have the votes to block Roberts, half of them (22 of 44) voted for him.
It’s almost physically painful to recall the sad case of Merrick Garland. In March 2016 — a full eight months before the general election — President Obama nominated the moderate-conservative to fill a vacancy created by the death of Justice Antonin Scalia, a right-wing icon. The Republicans blocked the appointment, a precedent not seen since the Civil War. But as an older white male, Garland had no liberal voting record to excite the Democratic base or progressives and bring them to the polls.
Further, many political observers believe that the Democrats suffered from paralysis. If they had used their power to shut down the Senate or force a vote, that might have motivated more voters to the polls. Instead, the overconfident Hillary Clinton lost and blamed it on Berners, Greens and “deplorables.”
Obama can now lick his wounds at his $12 million mansion on 29 seafront acres on Martha’s Vineyard while the rest of us are stuck with Neil Gorsuch, who said that a trucker was obliged to remain with his trailer, even if it meant his freezing to death. Score this Property 1, People 0.
The last stop in this rogues’ gallery (at least until Amy Coney Barrett is confirmed) is the ill-tempered Brett Kavanaugh, credibly accused of sexual assault, who was nominated two years ago by Trump. To be fair, the Democrats were again in the minority. But does anyone else remember how, in a razor-thin vote, Democratic Leader Chuck Schumer said that the notoriously transactional Joe Manchin of West Virginia could vote his conscience, as if he had one?
Some progressive critics of Ruth Bader Ginsburg say maybe she should have retired while Obama was still president. They have a point, but the pinnacle of the judicial branch should not be dependent upon the retirement decisions of individual Court members.
Why not have a party that will fight for genuine progressives on the Supreme Court? Such as William O. Douglas, champion of the environment (he wrote unusually readable opinions too, with some good laugh lines). Thurgood Marshall, the first African American justice and a strong voice for civil rights. Potter Stewart, who fought for criminal justice reform, access to the courts and the Fourth Amendment. Hugo Black. Tom Clark.
And the legendary Earl Warren. Ah, those were the days. For contrast, let’s look at some of the decisions by the Warren Court:
*Brown v. Board of Education (1954) banned the racial segregation of public schools. Decades later, public school children are still racially isolated, and over 200 school desegregation cases remain open on federal court dockets. Trump and the Republicans are advancing federal judges who oppose this landmark ruling, but the Democrats — who have approved most of Trump’s federal judge nominees — have not been out front advocating that these cases be resolved and the law upheld.
*New York Times v. Sullivan (1964) formulated “The New York Times Rule,” which holds that a public official unhappy about something that’s been said about him/her has to prove “actual malice” on the part of the offender, meaning knowledge or reckless disregard of a falsity.
*Gideon v. Wainright (1963) held that the Sixth Amendment required that all indigent criminal defendants receive publicly funded counsel (at the time, Florida only provided free counsel to indigent defendants in capital cases). And Miranda v. Arizona (1966) required police interrogating suspects to provide them a “Miranda warning,” requiring their rights be explained to them, including the right to remain silent.
We can’t promise that these laws will be defended with the snap of our fingers, but this is the minimum of what we will fight for. With Amy Coney Barrett, the Democrats will get what they deserve. But the American people won’t get what we deserve. Because the Democrats’ mission isn’t to stop Trump – it’s to stop the people, to stop us.
We’re done with lesser of two evil voting and the neocon/neolib Supreme Court appointments that come with it. Join us as we organize a people’s party.