If Anita Hill is the Model, We Are Screwed

“low angle photography of beige building” by Sebastian Pichler on Unsplash

The Constitution is meant to be a living document and so it needs living stewards. That is why there is the Supreme Court and an amendment process, so it can be updated when needed. The amendment process is a high bar though requiring a super majority of the state houses along with the normal legislative hurdles to federal law. This high bar is meant to encourage usage of the document in its simplest most original form without modification, but with interpretation.

The Constitution is worded to be flexible, not needing a constant cycle of amendments. This requires it to be arbitrated by the judicial branch, which is why there is a Supreme Court. The amendment procedure is supplemental to this judicial administration. The Constitution coupled with the amendment procedures provides a legal framework that a whole country can be hung upon. However, the judicial branch dovetails the Constitution with the present. As the country’s carpenters of legality, their lifetime appointments were meant to insulate them from politics.

Libertarian-Socialists understand that matters of money can breach this insulation of the judicial branch. The executive branch provides central leadership and decision-making to steer the ship of state. The legislative branch is to build a useful, relevant and just body of law on top of the constitutional framework to facilitate leadership and progress. As the world changes, the judicial branch balances the authoritarian nature of the executive branch and the reactive nature of the legislative branch with a longer view. The judiciary should be checking the politically driven unconstitutional outputs of the other two branches, but that has not been the case.

Things have only got worse on the court since the Anita Hill/Clarence Thomas hearings. The breathless and hopeful comparisons to those hearings and the Ford/Kavanaugh ones seem like fantasies. It is not that the comparison is not accurate, but the hopefulness is completely unjustified. We are screwed if this follows the same course as the Anita Hill debacle. No ideas about the role of the Supreme Court and the judiciary in American life are being debated now nor were they back then. Real legal issues of import are completely absent from the proceedings, now and then.

The previous Robert Bork confirmation did debate issues of how the Constitution would be interpreted in the modern era, unlike the Anita Hill hearings or the current Kavanaugh hearings. When Bork was not confirmed for specific issues relating to how he interpreted the Constitution, the follow up nominee, Douglas Ginsberg turned out to have a past selling marijuana. That of course ruled him out and Anthony Kennedy was plucked from a California law school.

In retrospect, the Robert Bork confirmation hearings were a lot more like what one would expect and what we need. The results were far more concrete and long lasting. Anthony Kennedy turned out to be a middle of the road moderate that actually acted as if he were independent of politics. The Senate’s advise and consent role was effectively leveraged to prevent a Supreme Court judge from being seated based upon that individual’s testimony about American law and the Constitution as well as his historical legal opinions. This is what happened to Robert Bork and is how this process should work.

In the case of Anita Hill though, Democrats made very little effort to derail Clarence Thomas based upon his legal opinions. As a black Republican, Clarence Thomas presented a conservative face to a duopoly that pigeonholed him as a liberal due to his race. This was wrong, but liberal opposition to Thomas was hamstrung by their stereotypes. Rather than debating Thomas’ legal opinions, the Anita Hill gambit was put forth. Despite a lot of lurid testimony, Clarence Thomas went on to be confirmed.

The Kavanaugh/Ford hearings seem to be going the same direction. A failure to debate the actual legal opinions of the man means that if he is NOT confirmed, his successor may just sail through, presuming they do not have similar skeletons in their closet as Kavanaugh. What exactly are the legal opinions that Republicans are attempting to foist upon the American people? We really do not know, though the fact that Republicans have been nominating Catholic men with such regularity gives a clue.

We do know that since the confirmation of Clarence Thomas, the court has become ever more political in its rulings. The politics of the members on the bench seems to color their decisions more than objective interpretation of the law. Clarence Thomas and his limited government philosophy should have made him the tie-breaking vote when the federal ban on growing marijuana for personal use made it all the way to the Supreme Court in the nineties. The basic premise was that the federal ability to regulate marijuana was based upon the interstate commerce clause. If a citizen grew the plant for personal use, did not sell it and did not transport it, how could interstate commerce be a factor?

Somehow, though, Clarence Thomas found a way to rule with other Republicans on the court. Clarence Thomas ushered in an era of court rulings based upon the political affiliations of the justices involved. Despite the fact that people of color were disproportionately being imprisoned in the War on Drugs, Clarence Thomas voted to continue the federal draconian prohibition of a plant. It is the political nature of the Supreme Court that has caused it to stray from its objective mission.

The Supreme Court’s ability to interpret how the authors of the founding documents would rule in the twenty-first century has made its members quite powerful. This has led the judicial branch has become ever more politicized. It is hard to imagine anything more politicized than installing the president as the court did in 2000. Five judges decided who would be the first president in the 21st century. One of those five votes came from a man, Antonin Scalia, who was the hunting friend of the Republican vice-presidential candidate, Dick Cheney.

It is difficult to understand why Scalia did not recuse himself, making it a four to four stalemate vote. Historical precedents indicated allowing the recounts to continue or for the election to go to the House as it had in previously disputed elections in the nineteenth century. Alternatively, the original intent of the Electoral College delegates was to break such a logjam before the Supreme Court should be involved. Those are two constitutional courses that the court appeared to block for political reasons not judicial ones in 2000. Scalia’s choice to ignore those precedents has irreversibly changed the Supreme Court’s role in the constitutional balancing act. Electoral College debate could not be considered, because George W. Bush required ALL 27 of Florida’s electoral votes.

The potential solution of weighting the Florida electoral votes by popular vote was never debated. If Bush only got 13 or 14 electoral votes as the Florida popular vote indicated, Al Gore wins. In fact, even if Bush got 95% of the popular vote giving him 26 of the 27 electoral votes, Gore still won. The winner-take-all method was the only way there would be a Republican president to start the twenty-first century. It is the fact that real and reasonable constitutional remedies existed that makes Scalia’s failure to recuse himself seem even more obviously politically motivated.

Libertarian-Socialists understand the need for the judicial branch, but they also understand that corruptions of money and power have weakened the system. Citizens need to understand the laws more than ever, so as exercise their constitutional role to combat these corruptions. Constitutionally, the people are allowed to push back against judicial dictatorship through jury nullification. Understanding the constitutional framework of the nation can help the people lead the Supreme Court to the correct rulings.

The people can help shape law by communicating what they see as the nation’s judicial shortcomings. Those judicial shortcomings are especially evident when it comes to an individual citizen’s right to protections from intrusions by the state or moneyed power. The Fourth and Fifth amendments clearly lay out the extent of the individual’s right to privacy, though without using the word, privacy. This has led to the complaint that “activist judges are making up law”, because the word privacy does not appear in the Constitution or amendments, but this is not warranted.

Libertarian-Socialists recognize the world evolves as time goes by and the legal parlance of the day changes too. What did the founding fathers mean, when they wrote this: “…the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…?” Libertarian-Socialists believe this a clear constitutional right to privacy defined here. The Supreme Court exists to interpret a concept like privacy in the twenty-first century and future centuries. Unfortunately, so far that interpretation has been deeply flawed in the libertarian-socialist’s view.

Repeatedly, there are examples in the news of individual privacy rights being breached with no repercussions for those that breached them. For example, if proper constitutional protections were enforced, the strip search of a teenage girl for ibuprofen would not only be seen as a violation of privacy, but a grave violation of the basic tenants of human rights and child pornography laws. Nonetheless, just such a case made its way through America’s broken justice system.

Common sense is scarce in American courts and such actions by middle school staff in the Safford Unified School District led to little more than a wrist slap for the overzealous do-gooders. The Savana Redding case went all the way to the Supreme Court, because local courts in Arizona found no illegal behavior in stripping a 13-year-old girl to search for ibuprofen. Though the Supreme Court eventually determined that the strip search of the teenage girl was unconstitutional, it shielded the district from liability claiming the law was not clearly established at the time the act was committed. Thus, no consequences befell the perpetrators of such an obvious violation of individual rights and liberty.

When a teenage girl’s naked body cannot be protected by the Constitution and the Bill of Rights, what can be protected? American law has strayed from common sense. It is not justice when the Supreme Court shields “agents of the state” from obviously unconstitutional and illegal acts claiming such limits were not clearly defined. The Supreme Court’s rulings no longer look like an objective balancing of the needs of the state, which often represents moneyed power, and the needs of the individual.

Due to the lifetime nature of the appointments to the court, we are baking the political duopoly into our legal system. This has to stop. It has caused innumerable machinations, because of the incredible power that the five robes have on the court. Many have postulated that the current president was tolerated by his party, because of their desire to cement a Republican majority into the Supreme Court for decades to come. As a nation, we need an alternative to these lifetime appointments. With a term limit on the bench, we reduce the power of each appointment.

Libertarian-Socialists now support a finite term for a Supreme Court justice. A term of ten years, staggered among the nine justices, means that almost annually, there would be a chance for an appointment to the court. If we make the seat on the bench limited to two terms, then no justice will ever serve for more than twenty years. This will likely require an amendment to the Constitution, but the alternative that we have been living with over the last couple of generations, leaves much to be desired.

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