Supreme Anxiety

by Alexander Cockburn And Jeffrey St. Clair

We’re being offered two reasons for voting Democrat next November. One reason is the Republicans will destroy Social Security. The other is that a Republican President will appoint Supreme Court judges who will outlaw abortion. That’s about it. Star Wars will continue; the War on Drugs will continue, ending welfare as we know it will continue; building more prisons and death chambers will continue; Colombian counter-insurgency/drug war will expand; NAFTA and WTO will march forward. But the remnants of FDR, s New Deal (now a very Small Deal) and the Roe v Wade decision will continue “thanks to Gore”.

Is that really it?

Every four years the “left” is asked to stand quietly aside and keep quiet during the campaign and then slink into the polling place, hold its nose, and vote for the lesser of two evils. Meanwhile the Democratic Party can focus on luring the dangerous lumpen-proletariat from the dread “Right” and put all its big money into pitching the center and center-right. The “left” should be thankful for small gains, avoid raising the “class question” or scaring the super rich away from Demo contributions.

The ceremony of the lesser of two evils has differed. The most effective argument ever offered in this genre was in 1964: LBJ was our man in order to keep Barry Goldwater’s itchy finger off the nuclear trigger. Usually these arguments are pitched late in the campaign – never before the conventions. The classic argument is that they will take away the New Deal but now that Clinton/Gore are proud New Deal dismantlers we are left with the last remnant -Social security – and abortion. Democrats are already invoking the specter of George W. Bush stocking the US Supreme Court with two or three more Justices like Antonin Scalia or Clarence Thomas eager to drag the country into the Middle Ages, annul Roe v Wade and put the back-street abortionists back in business.

Even nuttier:
noticing that the Republicans disowned Earl Warren, the Democrats have appropriated the Warren Court as their own. And following the same “logic”, since the Republicans are forced to oppose Roe v Wade, the Democrats have appropriated that case as well. But the Warren Court was burdened primarily by Truman’s disastrous appointments (Burton, Vinson, Clark, Minton). Warren and Brennan — two bright lights — were appointed by Ike. The great Hugo Black was of course appointed by FDR in 1937 two years before Douglas, but can we today imagine the Democrats appointing a man who’d been a member of the Ku Klux Klan?

As for Roe v Wade. which US Supreme Court Justice, dissenting to that opinion, wrote these bitterly sarcastic words: “The Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the foetus.” Yes, this was Byron “Whizzer” White, put on the Court by John Kennedy, a man of the same sort of Democratic profile as Al Gore. White disappointed liberals, the same way that David Souter, appointed by George Bush, disappoints conservatives today. If Hubert Humphrey had defeated Nixon in 1968 are we really sure that his first two appointments would have -like Burger and Blackmun (who wrote the Roe v Wade decision) taken the same course that they did on Roe v Wade.

It is very easy to see Humphrey appointing a Catholic-approved nominee in one of those seats. And if RFK had not been shot had won the nomination and beat Nixon? What court then?

A Democrat in the White House
is no guarantee of a liberal on the Court. Gerald Ford picked John Stevens, one of the court’s current liberal champions and indeed the only justice to rule against two oil companies in one of the recent batch of Supreme Court decisions. Nixon’s nominee, Harold Blackmun, wrote the Roe v Wade decision. Twenty years later Bush Sr.’s nominee, Souter,, probably the most liberal justice today, wrote the Planned Parenthood v Casey decision in 1992 reaffirming the “essential holding” of Roe v Wade, and arguing that “choice” was now installed in the national culture. The Court echoed that view in its recent upholding of the Miranda rule.

And why had choice become thus installed, why was the “essential holding” being reaffirmed? Through the activity of social movements, through the political pressure of millions of people. The idea that our moral fabric, the tenor of our culture, the texture of our freedoms derive from the US Supreme Court, and therefore somehow depend on whom Gore or Bush may or may not nominate, is ludicrous. The US Supreme Court, like all ruling state institutions, bends in a benign direction only under the impulse of powerful social movements.

Throughout the nation’s history the US Supreme Court has generally been a reactionary force and it will no doubt be so whether Gore or Bush are elected in November, or whether the Democrats or Republicans control the Senate. A partial exception was the Warren court, which had the coincidence of three great justices, Black, Douglas and the Eisenhower-appointed William Brennan and which was prompted by the rise of civil rights movement and the political assertion of black people to try and head off more drastic social explosions. In so doing it buttressed a federal government that was unflinchingly hostile to the interest of working people, minorities and the environment. Reynolds vs Sims, in 1966, turned many rural counties into third-world latifundia.

So which is the more realistic political option: to vote for Al Gore, despite his generally awful political positions, because he might pick a judge who might turn out to be okay; or to look at Al Gore’s recent record, which is not a matter of conjecture and extrapolate from that record the sort of person he’d been likely to nominate.

Affirmative action?
The National Partnership for Reinventing Government, overseen by Gore, was denounced last year by the national legislative review committee of Blacks in Government as having been “generally silent about fairness and equality issues” and as having had “a devastating impact on federal government workers, particularly racial minorities.”

First Amendment? Gore was for censorship of the internet, and fully supported his wife Tipper’s efforts to install censorship in the recording industry. War powers? In the Clinton years Gore has been the biggest hawk of all for executive action, unfettered by Congress. Constitutional protections and the Bill of Rights? The Clinton-Gore administration has been ghastly on these issues. It wasn’t the US Supreme Court that limited habeas corpus for people on Death Row, it was Bill Clinton’s Counter-Terrorism and Effective Death Penalty Act, fully supported by Vice President Al Gore.

Would Democrats want a nominee picked by a man with this political record? Actually, they couldn’t care less. If they did care, they’d be out campaigning for Ralph Nader. All they want to do is scare the pants off liberals with the idea that Bush would finish off Roe v Wade. It’s a substantively vacuous and bankrupt position but it’s pretty much all they’ve got left. CP

Alexander Cockburn’s Guillotined! and A Colossal Wreck are available from CounterPunch. Jeffrey St. Clair is editor of CounterPunch. His new book is Killing Trayvons: an Anthology of American Violence (with JoAnn Wypijewski and Kevin Alexander Gray). He can be reached at: sitka@comcast.net.

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