7-19-05,9:30am

The recent announcement that Sandra Day O’Connor, a conservative Arizona Republican and Barry Goldwater supporter and Reagan appointee, is planning to resign raises questions for the left and the center, which is already mobilizing several petition campaigns. How can the call for left-center unity to defeat the ultra-right be applied in this circumstance? How should we advance our views in relationship to the broad left and the center? The main issue is to identify what the positions of the right are, what the positions of left and the center are, and understand how they came to be where they are in terms of both their policies and strategic position. Then it will become possible to identify what are minimum and maximum programs for both the center and the left, identify those programs and act to strengthen both the center and the left by influencing the center to move left in order to win over working class mass constituencies. As an historian, I can try to provide some perspective that will help us to develop a left-center campaign that is not merely defensive and reactive but one that can in the struggles of the present, however they are resolved, prepare activists and masses for advances in the future. The role of Communists is to provide perspective and vision for the left in coalitions, which are informal ad hoc formations where groups support specific programs often for different reasons or oppose specific individuals or groups because of a generally accepted common danger. The Marxist left’s role in broad left and left-center coalitions is to raise the property question, the class question, to help workers who ally with both the left and the center to see beyond the personalities and parties in which political battles are fought. It is to help us understand that it is classes not personalities or political parties that ultimately decide political questions, and, to paraphrase Lenin, classes must know what is to be done if they are to do it. This means working for what would be a centrist or reformist proposal without becoming centrist or reformist, without moving away from the property and class question and without encouraging illusions among working people that reforms are permanent solutions to class exploitation and oppression. Since Marxism-Leninism is both historical and dialectical there is always the question of historical perspective. From the late 1930s to the late 1960s under both Democratic and Republican administrations the federal government enacted labor and social legislation and civil rights and liberties legislation that previous courts had vetoed under such doctrines as states rights and “freedom of contract,” or the freedom of corporations to do what they want with impunity. As a result of the political gains made by labor and the center-left, the judiciary moved away from these conservative doctrines toward both acceptance of government regulation of corporations and a revival and expansion of Bills of Rights guarantees for political dissenters, minorities and the poor, representing a new balance of political forces. From the 1930s on the ultra right fought against these developments with the backing of big monopoly capitalist. Although the right had always hailed the “activist judges” who vetoed progressive legislation to protect first slaveholders before the civil war and then capitalists after it, the Supreme Court’s support for integration in the Brown and subsequent decisions changed all that. The Cold War interrupted the judiciary’s extension of civil rights and liberties protections as the Supreme Court with strenuous and eloquent dissents from progressive Justices Hugo Black and William O. Douglas upheld the convictions and imprisonment of the Communist Party leadership in 1951 under the crudely anti-Bill of Rights Smith Act, which made it a crime to “teach or advocate” the violent overthrow of the government. While the Communist Party did not advocate violently overthrowing the government, the Smith Acts authors and supporters claimed that all Marxists fell under its provisions. The Court’s slow rejection of McCarthyite policies in the late 1950s and restoration of due process to purged government employees angered the right both inside and outside government.

J. Edgar Hoover established the FBI’s secret Cointelpro program to do covertly what he had previously been doing overtly for fear of the courts. When the McCarthyite ultra right founded the John Birch Society in the late 1950s because of their anger at the Republican Party’s failure to repeal all of labor’s gains, the society began to infiltrate the Republican Party and launch an educational crusade against an “activist liberal judiciary advancing a Communist program.” The Society which played a significant and often unacknowledged role in the development of the contemporary ultra right, spearheaded “Impeach Earl Warren” campaigns through the country in the 1960s, often in alliance with White Citizens Council segregationists in the South and with right-wing Republican and Southern segregationist Democratic politicians. The Supreme Court’s expansion of the rights of poor defendants to legal representation and of people in police custody to be informed of their rights in the Gideon and Miranda decisions in the early 1960s became a rallying cry for the John Birch Society as it expanded its influence in the Republican Party and led support your local police campaigns and through “respectable” Republicans countered the demands for expanding civil rights and liberties legislation with anti-civil liberties concentration around the law and order slogan. The defeat of John Birch Society supported and influenced presidential candidate Barry Goldwater in 1964 was a crushing blow to the right and the ultra right. However, the coalition which rallied successfully against the Goldwater right for a positive program that Lyndon Johnson called the Great Society – comprehensive civil rights legislation, a national “war on poverty,” a pledge not to expand the Vietnam War and engage in nuclear adventurism – was soon broken by the duplicity of the Johnson administration on the issue of Vietnam. Johnson launched a massive, unconstitutional and criminal expansion of the U.S. war in Vietnam, an expansion embraced enthusiastically only by the right and ultra-right forces who had been defeated in the 1964 campaign. Outside of the Communist Party, which had not fully regained its legal rights and still had to wage a tremendous battle against de facto McCarthyism, the youth based New Left responded with cultural radicalism and traditional anarchist opposition to political action within the existing system beyond protests, which stimulated adventurism and opportunism and helped the right demonize the left and helped it immobilize the center. Richard Nixon took full advantage of these developments when he adopted the ultra right inspired law and order slogan in 1968, pledged to appoint a “southerner” to the Supreme Court (understood at the time as an appointment of a right-wing segregationist) and supported the successful maneuver by congress conservatives in to block Johnson’s appointment Abe Fortas as chief justice to replace Earl Warren and a Texas liberal to fill Fortas’ seat. Against militant opposition, Nixon shifted the court and the judiciary toward the right although no where near as far to the right as he had wished. Racism and sexism, neither of which was new, and political homophobia, which was, were the issues on which the right, both the traditional right and the clerically garbed new right campaigned on as their media repeated incantations against “activist liberal judges” in an almost robotic manner. And even before Reagan’s accession to the presidency the court had begun to move away from key civil rights civil liberties positions. In 1972, the court had in effect outlawed capital punishment as “cruel and unusual.” However, four years later, a conservative ruling gave the states the right to institute capital punishment, in effect negating its abolition in much of the country and undermining the equal protection clause of the l4th amendment. This development meant that because of a ban on capital punishment in Massachusetts, a resident of that state could not be executed whereas a U.S. citizen who lived in Texas or Florida not only could be put to death but was much more likely to than in other death penalty states like New York and California because of ultra-right political influence. The court’s legalization of pregnancy terminations in Roe v. Wade, the last great civil liberties victory by a peoples’ movement in the 20th century was seriously undermined by the Nixon court’s upholding of the Hyde Amendment, which barred the use of Medicaid funds for pregnancy terminations and thus deprived poor women from effectively gaining the freedom which Roe v. Wade meant for women generally. In the Bakke decision on affirmative action, Nixon appointees orchestrated a compromise between those who wanted to eliminate affirmative action as a policy to overcome long-term economic and social discrimination in order to promote integration and greater equality and those who wished to preserve affirmative action by changing the definition of affirmative action entirely. After 1978, affirmative action would be defended legally as a way to promote “diversity,” a positive end in itself but one that permitted companies and universities to treat the question bureaucratically, ignore the class background of affirmative action candidates, and lose any sense of the program’s original purpose. These three issues – affirmative action, reproductive rights and the death penalty specifically (the “prison industrial complex” generally) remain central areas of struggle for the left and center. As the left formed defensive organizations and coalitions around issues like defense of affirmative action and social welfare programs, some in the center called for keeping the right out of power by moving to the right. The right racist “southern strategy” of the Nixon Reagan Republicans to appeal to all of those who hated and feared African American equality and social-economic integration was complemented in effect by the “Southern strategy” of the Carter-Clinton Democrats, post-segregation Southern politicians who provided political patronage for individuals and organizations representing minorities and women while retreating from the issues on which the mass constituencies of the organizations fought.

The right captured the presidency with Ronald Reagan and set the pace for some in the center politically, creating in the 12 years of Reagan Bush an ultra-right bloc of three (Rehnquist-Scalia-Clarence Thomas) sometimes joined by two regular Republican conservatives (O’Connor and William Kennedy) and usually opposed by the remaining four judges. By the 1990s, the “right to work” state governor Bill Clinton sought validation from the right and rejected New Deal – Great Society policies with slogans like “we are not tax and spend Democrats” and offered the working class NAFTA. Clinton’s attempt to restore a center-right consensus politics while retaining the support of center-left forces that feared a Reagan Republican restoration did not succeed in blocking such a restoration, first under ultra-right Republican congressional leader Newt Gingrich and then a higher level through the Bush administration. Given the power of money related to incumbency in the deeply undemocratic U.S. political system, the Democratic Party as a “for profit” political organization has found itself in a deepening crisis since the 1970s. The more it loses support and funding from the sections of the capitalist class that had supported it in the past, Southern capital and service and high tech capital often led by non-Anglo Protestant capitalists, the more it moves through the creation of groups like the Democratic Leadership Council to the right to regain that support by adopting Republican programs and slogans in a more moderate form. Can the left and the center recover from the defeats of a generation? What issues can the left raise with the center in the battle, beyond attacking and filibustering Bush’s candidates? First, we cannot say about the Supreme Court what much of the Center says about Social Security: “it isn’t broke so don’t fix it.” The federal judiciary is broke in the sense that it is dominated by the right. The only serious question is what kind of a rightist Bush will get away with nominating. First, the center-left coalition should rally behind the “most advanced demands of the center,” the defense of the separation of church and state and the defense of reproductive rights represented which many prominent progressive Democrats like Congresswoman Barbara Lee and New Jersey’s Senator Frank Lautenberg do support. The left can and must aid the center in educating working people that these rights are essential to their well-being; reproductive rights are the rights of women and families to carry forward family planning and not be trapped in poverty. Separation of church and state protects working people from an ultra right which cynically seeks to shift social welfare responsibilities to “faith-based voluntary organizations” like the 19th century churches that used to give a sack of potatoes a week to the families of the unemployed—a huge step backward. The attack on the separation of Church and State also has created destructive conflicts between different denominations of Christians and potentially between Christians, Jews, Muslims and Hindus and others in contemporary U.S. society. On these two issues a center-left mass campaign can be launched and the Senate Democrats put on notice that they must use every means necessary to fight the appointment of a Supreme Court Justice who take us backward on these issues. Also, Communists might begin to point to long-range solutions that will advance the working class movement. First, the present federal judiciary would in all likelihood veto legislation establishing a National Health System, repealing the Taft-Hartley law, establishing a national full employment program, possibly even legislation re-establishing a progressive income tax system. The center left has to a considerable extent fought defensive battles on “social issues” which have a major economic component because the because the powerful national Democratic Party leadership, which acts to prevent center-left militancy and unity, resisted an activist economic program since the Great Society program of the 1960s.

Communists might raise the issue of expanding the number of Supreme Court Justices as Roosevelt advocated in his battle with the Court in the late 1930s, a tactic that failed to expand the court but did put pressure on the court to move away from its anti-labor positions. At a minimum, Communists can and should raise the question in the left and the center left that the Democrats must be held accountable to appoint militant progressive judges to the judiciary at all levels and especially at the federal level when and if they regain power. The right, which often learns to improve its tactics from the left, has done with great effect in the Republican Party. Given a policy of fighting the ultra-right through the Democratic Party in the short run primarily, the left can certainly learn this tactical point from the right. Just as the Bush administration has drawn from the ultra-right Federalist Society, a group of lawyers who are still at war with the New Deal and even earlier middle class progressive reformers, the left must both publicize progressive judicial philosophy and provide future Justice Department officials and judges.



--Norman Markowitz is a contributing editor of Political Affairs.