For twenty or thirty years now, this country has maintained two absurd fictions when it comes to American jurisprudence and the process of selecting the members of our national courts. Both of these grand national lies were reaffirmed last week, as if the legal principle of stare decisis roughly, maintaining the status quo had now metastasized into a rigid political one as well. What a joke.
This is pretty amazing, if you think about it. We're talking here about the very same people who brought you the Southern Strategy in 1964 and 1968, whose great hero Saint Ron of Hollywood launched his presidential campaign in Philadelphia, Mississippi, proud home of the murder of civil rights activists, who gave us the Willie Horton ad in 1988, and who stole the elections of 2000 and 2004 by disenfranchising black voters in Florida and Ohio, respectively.
Now, a mere five years later, here we come to find them engaged in the fastest consciousness-raising experiment in human history, and positively outraged at the prospect of racial discrimination! And therefore spending countless hours throughout the Sotomayor hearings, fighting for truth, justice and the American way, making sure that a racist doesn't end up with a lifetime appointment to the United States Supreme Court!
And led by Jefferson Beauregard Sessions III (no, I'm not kidding), junior senator from Alabama, no less. Y'all remember Jeff, doncha? He was himself nominated to the federal bench by you guessed it Ronald Reagan, only to be shot down by the very same committee on which he is now the ranking member. Even the then-senator from his own state on the committee didn't vote for him. Seems that Beauregard was not necessarily so beauly regarded by members of the black community, due to a rather burgeoning record of insensitive remarks on racial matters. These ranged from referring to a black member of his staff (clearly an administrative oversight how that ever happened) as "boy", to praising the fine work of the Ku Klux Klan. I think that was the problem, though it could also have been his vigilant efforts to protect America from the evils of voter fraud, as he prosecuted three civil rights workers over the alleged crime of 14 supposedly tampered ballots out of 1.7 million cast in the black counties of Alabama. A whopping four hours after resting his case, the jury acquitted the defendants. But, then, you know how sympathetic 'Bama juries can be to black civil rights workers, eh?
Republicans newly constituted as brave champions of the civil rights movement is only the latest of grand fictions to emerge from the hearings, however. For more than two decades now, we've been indulging in two others as well.
The first of these is that the Senate Judiciary Committee hearings are actually hearings, as opposed to, say, clumsy choreography by men of ill-repute clad in ill-fitting suits. I trust that the Sotomayor non-hearings gave the lie to that notion once and for all, though in fact we've been living though this ritual for a long time now. More precisely, we've been doing it ever since 1987, when Robert Bork was stupid enough to scuttle his own nomination by more or less truthfully answering the Committee's questions, and thereby exposing himself as the great champion of contemporary values (in the thirteenth century) he actually was.
No nominee since then Republican or Democratic has been that foolish. Now, they all hide behind the notion that they cannot express a position on any given question that might come before the Court, because they would be expected as justices to enter into the consideration of any such case without allowing any personal prejudices to hold any sway. There is actually some real legitimacy to this position, at least if you assume the Court to be a non-political branch of government (more on that shortly), but that has little to do with why nominees invoke that shield. They do it to avoid being Borked by the other side.
What to do, then? How can we screen these people before we anoint them with a lifetime's worth of enormous power? The obvious answer is to dwell on the nominee's own record in the hearings, and to make the nominee hold forth on the appropriateness of previous Court rulings. Some of that occurs, but mostly that has become a joke too. If the case in question is old enough or no longer controversial enough, you can get nominees to cheerfully and vigorously adhere to society's consensus view when asked by a Committee member. Marbury vs. Madison? Damn right! Totally for it. But if it's remotely recent say, Bush vs. Gore forget about it. As to their personal records, they've all taken to adopting absurd fictions such as "I was just doing what my supervisor instructed when I wrote that racist legal brief as an employee of the Reagan Justice Department", or "I was just sort of thinking out loud about the philosophy of jurisprudence when I gave that speech saying there is no constitutional right to privacy".
This is nonsense, and it says everything about the Committee's pathos that anyone with the title of senator would ever accept such a jive answer. If your boss asks you to do some research for a speech he's gonna give articulating a position you don't particularly like, okay, you hold your nose and do it. If he asks you to help deprive an entire race of people of their voting rights, you quit your freakin' job in protest, dude unless, of course, you happen to secretly agree with that idea. Otherwise, though, that particular alibi went out back in 1945, in a little German town you may have heard of...
My favorite moment of the last decades of this embarrassing ritualized dance came when Samuel Alito's 90 year-old mother played the Toto role and inadvertently pulled back the curtain to expose her son's lies. Alito was about as pro-choice as the pope, but he had to play the game of telling the Committee that he had no position on Roe vs. Wade. But then some reporter shoved a microphone in the face of Rose Alito who was either fresh off the boat, or should have been and she forgot to lie, saying of her son, "Of course he's against abortion!" Then, too, there was the small matter of the fact that he himself happened to have also said so in a job application to the Reagan (In)Justice Department.
Boo-hoo. But guess who's on the Supreme Court for life now? Guess who's just waiting for one more regressive vote to strike down the tatters of what is left of Roe? Guess who can't wait to smash the Voting Rights Act to pieces?
Ironically, it is this fiction of not having political predispositions which, more than any other evidence, gives the lie to the other long-standing one. Political parties and ideological contenders care about the Supreme Court of the United States. A lot. This is especially true of the radical right, which made capturing control of the Court its single most important mission over the last two or three decades. They were delighted when George W. Bush stole the presidency in 2000, but only in part because he would cut spending for real Americans, fight lots of wars against bad smelling brown people with the wrong god, and shred the environment for fun and profit. What they really, really got excited about was the idea that he would be making appointments to the federal judiciary, especially the Supreme Court.