1-30-06, 9:13 am
The Democrats are fighting among themselves whether to sustain a filibuster against the Alito nomination, which all progressive forces in the U.S. should demand that they carry forward in the most militant way. Progressives also should make clear that a filibuster must be carried forward. If it fails nothing will be lost and those who advanced it will gain respect. If it succeeds, it will be a significant victory.
Senators, Republicans and Democrats, who either support Alito directly or vote to end the filibuster and insure his approval, will lose support from their constituencies. Alto’s victory will literally create, in our time, the most reactionary Supreme Court alignment in modern U.S. history.
For the first time since the 1930s, the court will have four utrarightists, Alito, Roberts, Scalia, and Thomas. The situation will also be objectively worse than it was in the 1930s when Chief Justice Charles Evans Hughes was a political centrist who changed his position in the face of mass pressure from labor and the left orchestrated by the Roosevelt administration. Unlike the 1930s, when FDR accused the 'nine old men' on the court of standing in the way of social and economic progress, Alito, Roberts, Scalia, and Thomas will not be retiring soon, to be replaced by progressive jurists, which Roosevelt ultimately did to the Right-Center court that sought to invalidate New Deal legislation in the 1930s.
Even if the right Republicans are decisively defeated in the next two elections because of the cumulative effects of their disastrous polices, John Paul Stevens, a liberal Republican who has voted fairly consistently against the far right, is the only Justice expected to retire in the foreseeable future. If age or health factors force him to retire while Bush is still president, a far right majority on the court would become a near certainty.
One would literally have to go back to the 1890s, when the court, for whom corporate wealth and power were sacred principles, invalidated a federal income tax, refused to apply anti-trust legislation to corporations while applying such legislation to unions, and invalidated state laws regulating business while it validated Southern state laws establishing segregation to find any parallel. Or perhaps, if that 1890s court, was too 'liberal,' too far away from the 'original intent' ideologues of the Federalist Society, one might have to return to the slaveholder dominated Supreme Court of the 1850s, which in the Dred Scott decision not only invalidated all restrictions on slavery but declared that the framers had never considered any people of African descent to be citizens of the U.S. Thus, in principle, their 'original intent' had been to deny citizenship rights to free Blacks, who could never become 'African Americans.'
Such a victory would both strengthen progressive candidates for the 2006 elections and quite possibly compel Bush to chooses center-right Republican like Sandra Day O’Connor, rather than an ultrarightist like Alito. While this may sound like a small victory, it would be a strategically important one on the road to liberating the United States from the Reagan-Bush Republicans and restoring at the very least the separation of powers and checks and balances of the Constitution which conservatives especially like to praise, but which the present administration has not only undermined but attacked directly in unprecedented ways
MoveOn.org and other activist groups have been mobilizing support for the filibuster. The left should actively support this campaign and fight to make it more militant. A filibuster can through television bring more and more political who oppose what Bush and Alito stand for on core issues to realize the danger the Supreme Court faces and act to put pressure on the President to retreat.
First, it is important to understand that the political center never wants to fight or knows how to fight unless the left teaches it. To say that Alito is not 'mainstream,' convinces no one, since the mainstream is always shifting and the failure of the center and the left to engage each other only insures that the center will engage with and appease the right and the left will criticize and denounce the center—that the 'face' of the opposition center, figuratively, will be that of Bill Clinton, and the face of the left similarly will be Ralph Nader. That has been and continues to be a recipe for disaster.
Also, the left can never become mainstream unless and until it either becomes dialectically a new political center or influences a changing center to adopt in some form many of its policies, as the Communist-led left did in a limited but significant way in the 1930s.
First, the left can point to the corruption and increasing tyranny of the Bush administration, which flies in the face of traditional American definitions of freedom and democracy. The left can point not only to the repeal of Roe v. Wade, which frankly would become a high probability if Alito is appointed and virtually inevitable if Bush is then able to replace Stevens with someone like Roberts and Alito, but also to other likely destructive decisions.
While affirmative action has been undermined and its defenders forced to fight defensive battles since the Bakke decision (1978) no one should have any doubts that a far right majority would eliminate it entirely. The Miranda and Gideon decisions, placing restrictions on police conduct and providing defendants with the right to counsel, two precedents long condemned by the judicial right, would probably be reversed. The worst abuses of the 'Patriot Act,' the wiretaps, searches, seizures, and preventive detentions would be upheld, encouraging police agencies to carry them even further.
The 'new federalism' doctrine would be carried forward in cases sustaining the power of the president over Congress, the power of the President and/or Congress over the States, the power of both the federal and state government over the individual. What the old New Dealer Bert Gross called 'friendly fascism' in the Nixon years, that is a great expansion of executive power and privilege, especially police power advancing under the cloak of constitutional forms, would advance much more rapidly with Supreme Court support.
There would be no Supreme Court to uphold the New York Times as the Court did when it published the Pentagon Papers in 1971. There would be no federal judiciary to stop a president from 'getting' the Washington Post, as Richard Nixon privately swore he would do after the first Watergate revelations were published. There would be no Supreme Court to compel a president to turn over documents showing criminal acts as the Supreme Court compelled the Nixon administration to turn over transcripts of the Watergate tapes in 1974.
Actions like Nixon’s attempt to launch an anti-Semitic purge in the Bureau of Labor Statistics in 1971 to feed his own paranoid prejudices, and the Reagan administration’s flouting of congressional resolutions by both selling arms to Iran and siphoning off some of the profits to the Nicaraguan contras, would become normal acts. A president could legally and literally get away with murder, which is the foundation of tyranny.
The U.S. government in such a context might look more and more like Greece before the colonels coup of 1967, that is, a government where widespread illegality and criminality was not checked or balanced by anything except a small section of the press and legislature that was willing to seek to uncover and expose its abuses.
We must fight to support the filibuster and use it to defeat the Alito nomination before what Bert Gross called 'friendly fascism' advances further in the U.S. trickling down from the government to the people.
--Norman Markowitz can be reached at pa-letters@politicalaffairs.net.
