7-30-05, 8:15 am
The Bush administration has nominated a smooth corporate lawyer with all the right university, law school and gentleman’s club connections to replace Sandra Day O’Connor at the Supreme Court. Questions will be asked of course, particularly on Roe v. Wade, but the federal judiciary’s collaboration with right-wing Republican administrations in the undermining of workers’ rights and civil rights and civil liberties should be seriously addressed if peoples movements who are mobilizing to defeat Roberts are to be given a real hearing.
First of all, the argument that Bush as president has the right to appoint anyone to the Supreme Court he wishes is specious. The Supreme Court has always been a political court and there have been intense battles over the appointment of specific judges through U.S. history. Most of the judges themselves have understood this. For example, when Oliver Wendell Holmes, the great early 20th century progressive jurist, wished to resign from the court because he was over ninety and in bad health, he contacted President Herbert Hoover and said that he would only resign if Hoover appointed a progressive to replace him. Even though he was very old and ill, Holmes told Hoover that his chances of surviving on the court were much greater than Hoover’s chances of being re-elected in the midst of the great depression. Hoover did appoint a progressive to replace Holmes.
Popular opposition and leadership by Senate Democrats did stop Richard Nixon from appointing his first two court nominees, Harold Carswell and Clement Haynesworth. A powerful mass movement also defeated Reagan’s attempt to appoint Robert Bork to the court. While those who were eventually appointed were not progressives, a number of them subsequently played a very positive role in opposing rightwing initiatives on the court. Of the sitting Judges, John Paul Stevens, appointed by Gerald Ford, and David Souter, appointed by George Bush I, are the best examples.
It is important to broaden the campaign against Roberts by raising the class question, making it clear that Roberts on all major class issues is the enemy of the overwhelming majority of the American people chosen by an administration which received the votes of 30% of the nation’s eligible voters. Anita Hill, an African American Law Professor best known for her role in Justice Clarence Thomas’ confirmation hearings, mentioned after the appointment was announced that that the choice of a candidate with Harvard Law Review and elite Washington firm background, hailed as a 'standard of excellence' by supporters, makes it unlikely that women and people of color, neither of whom have too much access to such credentials, can ever be on the Supreme Court. This is certainly true although it really isn’t primarily a question of gender and ethnicity since there are female and minority jurists who are no different than Roberts in their support of corporate power and opposition to workers rights along with issues of reproductive rights and civil rights and civil liberties.
In the battle against Roberts, progressives should begin to put forward the need to have the federal judiciary (and the judiciary at all levels of government) include labor lawyers and community lawyer representing working people on a myriad of issues from parking tickets to land-lord tenant disputes as against corporate lawyers and lawyers who are professional politicians.
Roberts unlike Lani Guinier, extends the rightwing court domination by being objectively worse than Sandra Day O’Connor, the conservative Arizona Republican whom he may replace. While O’Connor came from a ruling class Texas family and attended Stanford, her gender kept her out of the old boys club of elite lawyers. While she was a Goldwater Republican politician in Arizona, she, like Goldwater himself, did not identify with the religious right and, unlike her fellow Arizona Goldwaterite, William Rehnquist, who voted against Roe v. Wade, had no record of opposing reproductive rights. Over the last two decades, O’Connor was sometimes the swing vote against ultra-right stands on a variety of issues. Roberts, based on his record, can be counted on to swing to the side of the ultra-right.
His career over the last 24 years is evidence of this. Roberts worked in the Justice Department in the Reagan administration as a rightwing young attorney whose memos, those so far released, show him prodding senior rightwing Republican Justice Department officials like William French Smith and Theodore Olson to be more militantly rightwing in their actions. Roberts for example favored administration support for a bill outlawing school busing to facilitate integration even though the Supreme Court had previously declared busing for those purposes to be legal for those purposes. His cover story was that busing produced 'white flight.' Roberts stated his opposition to affirmative action because it meant the recruitment of 'unqualified candidates'
At the same time, Roberts clearly stated his opposition to court decisions to restrict sectarian prayers in public schools and court opposition to the use of public funds for parochial schools. His MO was to express sympathy for grievants, that is, minorities and women who were struggling for equal rights, but to contend that the policies they advocated would make matters worse for them one way or another. To me this sounds suspiciously like the old refrain of keeping you place, waiting fifty-years, one hundred years, to get to the front of the bus, to get the job others get because they don’t have your color or gender, and realize that it is for your own good.
Out of government, Roberts served as a high corporate lawyer, earning in recent years a seven figure annual income. In that role, he represented companies in conflict with each other and in conflict with their workers. This can and should be highlighted in the campaign against him.
Roberts is a throwback to the powerful corporate lawyers who from the 1870s to the 1930s, dominated the Supreme Court. They first invented and defended the 'freedom of contract' and legal due process for the Trusts, then they built a wall of protection in federal law for those corporations against both state and federal legislation regulations that benefited workers and the whole people.
Roberts, in the mold of the contemporary ultra right goes beyond those corporate lawyers in his opposition to reproductive rights (which did not exist in their time in law) and the separation of church and state (which did).
Roberts’s anti-working class orientation today is highlighted by his opposition to affirmative action and the enforcement of civil rights legislation, because the anti-civil rights agenda is essentially a defense of corporate profits and power against working people.
Eliminating racial and gender inequalities means eliminating the basis for super-profits gained through discriminatory wages, hiring practices, fewer benefits and so on given to people regarded as less worthy. Eliminating inequality also threatens the hegemony of the capitalist class by unifying workers. Residential integration of communities and schools also deepens the general integration which has been carried forward at the work place and diminishes the racist sub-text that underlies right-wing political attacks on urban housing and social welfare programs (since both 'urban' and 'welfare' are synonyms for minorities).
Finally, reproductive rights including the right to pregnancy termination makes women more independent in the workforce and in society as a whole, reducing capital’s ability to channel women into pink collar jobs, define female workers as part-time because of pregnancy and child care issues, and treat large numbers of female workers, along with minority workers, as a super-exploited 'reserve army of labor' in Karl Marx’s classic formulation, used to depress wage rates and divide and weaken the working class as a class.
Scholars in the 1960s in criticizing US foreign policy often wrote of the 'arrogance of power.' Power is ultimately class power and the more secure it feels, the more open it is in its arrogance.
John Roberts is a smart rich country club Republican chosen by some of his by some of his cruder, less intelligent brethren, Bush and his advisors, to run interference for them in the Supreme Court. They can be sure that he will do his job because he always has. A successful and broad fight against Roberts’ confirmation would connect the class question with Roberts’ right-wing stands on civil rights and reproductive rights. Further, progressives should begin to actively advocate the future appointment of progressive judges, in the tradition of Hugo Black, William O. Douglas, and Thurgood Marshall, to the Supreme Court and the federal judiciary. My first choice would be Lani Guinier.
--Norman Markowitz may be reached at pa-letters@politicalaffairs.net.
