Supreme Court appointments, BAR's own Freedom Rider Margaret Kimberley pointed out a couple weeks ago, are the clinching argument on behalf of every Democratic presidential candidate. Send a Republican to the White House, the alibi goes, and that Republican will send platoons of corporate-funded, anti-choice, authoritarian, warmongerng, racist, Constitution-shredding, pro-Federalist black robed goons to the federal bench, and one or two to the Supreme Court. Some alibis, like "the kid down the street does it all the time," are true, but beside the point. The point is what kinds of judges do Democrats appoint? What kinds of judges is Barack Obama appointing?
Back in 2009 we examined the pre-Supreme Court career of Sonia Sotomayor, comparing it to the pre high court careers of the only two previous nonwhite Supreme Court justices, Clarence Thomas and Thurgood Marshall. It was evident that Sotomayor's legal career bore a lot more resemblance to that of Clarence Thomas than to that of the illustrious Thurgood Marshall, who defended black people on death row in several states and campaigned for the undoing of Jim Crow laws for a quarter century.
Instead of some corporate-funded, anti-choice, authoritarian, warmongerng, racist, Constitution-shredding, pro-Federalist black robed goon, just who is President Obama sending to the Supreme Court? Who is Elena Kagan? She has little public record to go on, but what there is, is profoundly disturbing.
Corporate-funded? From 2005 to 2008, Elena Kagan served on the Research Advisory Council of Goldman Sachs' Global Markets Institute. Lawyers and clients are as a rule both consenting adults (whether human or corporations) and choose each other for their own reasons.
Anti-choice? As domestic policy advisor to President Clinton, Elena Kagan was a vigorous advocate of banning late term abortions, according to memos obtained by ABC News.
Authoritarian? Warmongering? Constitution-shredding? There is some evidence indicating that Elena Kagan supports a view of presidential power that would make Dick Cheney proud. When being examined by the US Senate for confirmation to her present post as solicitor general, Kagan agreed with the proposition that the entire planet is a "battlefield" and anybody the US government snatches from any spot thereon is subject to being considered something like what Bush used to call an "unlawful combatant."
Racist? Pro-federalist? As dean of Harvard Law School she made 32 tenure-track appointments. 25 went to white men. Six went to white women, and one to an Asian woman. She managed not to hire a single black, Latino or Native American tenure track law professor. Several of her hires were prominent members of the Federalist Society, a cabal of right wing attorneys whose objective is nothing less than repeal of most of the 20th century.
The damage that Republican Supreme Court judges like Antonin Scalia and Clarence Thomas, to name only a couple, have done is truly incalculable. If appointing a justice who could be counted on to undo and clear away some of that right wing wreckage is too much to ask, what does it say for the main reason, the clinching reason given for supporting Democratic presidential candidates?
This is a crucial and defining moment for the presidency of Barack Obama, the instant at which he leaves his mark on the high court for perhaps twenty or thirty years to come. Retiring justice John Paul Stevens is indisputably the most "liberal" voice on the court, a man with a clear record of opposing many racist practices and authoritarian tendencies. Stevens is the liberal anchor of the court. To replace that liberal anchor with anyone less committed to upholding the rights of the poor and powerless is to unleash and further empower the likes of Roberts, Scalia and Thomas. That's precisely what President Obama accomplishes with the appointment of Elena Kagan.
Hundreds, even thousands of gifted attorneys have voiced their opinions in columns, books and law journals and blogs on the ills and evils of patriarchy and corporate rule, on the need to protect nature and the environment, on how to remedy historic race-based inequities, even on how to end the nation's universal policy of black mass imprisonment. None of them could be considered for the Supreme Court. We've come to the point where, to be considered by a Democratic president for a Supreme Court appointment, one has to be nearly indistinguishable from a Republican. What does that say about how people-proof and democracy-proof our parties and political systems have become?
It's time for everybody to face the fact that the gifted black man in the White House has not been kidnapped by corporations. He's not being muzzled by mysterious forces, and he's not waiting for some public or secret signal from on high or down low to start looking out for the interests of ordinary people. The black man in the White House today has more in common with the last two or three or ten white men in that White House than he's ever had with the interests of ordinary people. His differences with some of them, with Clinton, Reagan and the Bushes, are more nuance than substance.
Historically, the last three Democratic presidents all came after Republicans. Democratic presidents, for some reason, do not succeed other Democrats,. They never leave small-d democratic legacies upon which to build. What the last three Democrats in the White House have done is continue and extend the work of their Republican predecessors after those Republicans have become too unpopular to do it themselves.
Carter came in just after the end of the Vietnam war. He did what Nixon and Ford could not have done, committing the US to military intervention anywhere in the world that oil supplies were at stake, and began the enormous US military buildup in the Middle East. After Bush failed twice to get NAFTA through Congress, Bill Clinton made it his top priority, along with expanding the war on drugs" initiated under Reagan and Bush. For every two black men in prison when Clinton took office, there were three when he left. Barack Obama has banned the phrase "global war on terror" while he continues policies of torture, kidnapping and secret imprisonment, policies by the way, which Kagan endorses. While the financial crisis did break in the final days of the Bush administration, Barack Obama has shoveled upwards of $23 trillion in public funds into the pockets of Wall Street speculators, more than both Bushes and all his predecessors together. He has continued the wars in Iraq and Afghanistan and Somalia, spread them into Pakistan and Yemen, and passed a bailout of the drug and private health insurance industries disguised as a health care bill.
While it's certainly true that John McCain might have actually have found someone with horns, pitchfork and a tail, and a pointy head covered by a white sheet to appoint to the Supreme Court, this is no excuse for what Barack Obama is doing to millions of the loyal Democrats who voted for him, who expect and deserve much, much better. It's really time to case excusing Obama by asking "what would John McCain do?' A better legal yardstick, and one closer to the measure of black America might be the life and career of Charles Hamilton Houston. A US army officer in World War 1, Houston attended Harvard Law School too, where he was chosen editor of the Harvard Law Review. He went on to be the dean of Howard University Law school and chief counsel for the NAACP, where he mentored Thurgood Marshall and the team of black and white lawyers who defended blacks on dozens of death rows and brought Brown V. Board of Education to the Supreme Court.
Instead of lowering the bar of expectation by asking"who would John McCain appoint to the Supreme Court?" we ought to reclaim our own agency and ask "who would Charles Hamilton Houston appoint?" A former criminal defense lawyer? There hasn't been one of them on the court since Thurgood Marshall. A public interest, environmental, or anti-trust lawyer? A human rights lawyer who opposes torture and unjust wars? Or perhaps someone who isn't even a lawyer. The possibilities are endless, once we free our minds and our politics from the people-proof and democracy-proof choices between Republicans and Democrats.
Bruce A. Dixon is based in Atlanta, where he is a member of the
state committee of the Georgia Green Party. He can be reached at