Roberts Redux

A Martian who had last visited earth for the John Roberts confirmation hearings and then returned for the confirmation hearings for Sonia Sotomayor might reasonably conclude that Roberts and Sotomayor are of one mind on almost anything – or rather that they both operate on a legal plane where precedent decides almost everything and the narrowest possible construal of legislative intent decides the rest. Had that Martian also attended the hearings for Sam Alito, he, she or it might have come to a similar conclusion about that nominee as well. But if pressed to say which of the three is the most independent thinker, the Martian would have to opt for Alito. Worse, unless that Martian was well versed in the nuances of Democratic and Republican politics and able to draw inferences from the tone of the questioners, he, she or it would be quite unable to discern any political difference between Roberts, Alito, and Sotomayor. I feel sorry for Sotomayor for having to go through this nonsense -- and not just because she has to accord “all due respect,” as they say in Washington, to Senatorial cretins. But girls gotta do what girls gotta do; and, given the white male resentment Republican senators exude, that dictum holds especially for wise Latina ladies.

Call it kabuki theater, call it farce. In either case, the hearings would be a major bore but for two things -- both of which are, unlike Sotomayor’s testimony, outrageous. Only the first, however, has any entertainment value. That would be the chance to witness conspicuous displays of stupidity from Republicans. I would hazard that, in a free and fair election, most observers would vote Jeff Sessions MIP, Most Imbecilic Player. However, I’d vote for Tom Coburn for his performance in not understanding how dumb his questions about his “right” to defend himself with a gun were. I especially liked how, when he finally stopped badgering the wise Latina over the point, he opined that, as a doctor, he understands how difficult it can be not to think like a doctor – implying that the reason Sotomayor just couldn’t get his point is that she thinks too much like a judge. [Coburn is the Senator who advised his pal and fellow Christian cultist Senator John Ensign to pay off his mistress and her family, but who won’t talk about it, claiming “doctor patient privilege.” Coburn is an obstetrician!]

There is a certain voyeuristic pleasure in watching Republicans act dumber than fifth graders, but there is none in watching Democratic senators, with one partial exception, endorse the persona Sotomayor is obliged to project. Al Franken was the partial exception. The rest of them had not an unkind word to say about the Roberts court, plainly the most noxious and reactionary in recent history. Instead, they outdid themselves suggesting how Robertsonian Sotomayor is, notwithstanding her Latina “identity.” They couldn’t even find it in themselves to cast aspersions on Antonin Scalia – the Mafiosi character I call “Tony Two Vote” (because it was his second vote for the Bush boy, along with the votes he marshaled from the other right-most Supremes, that unleashed the horrors of the past eight years). When Sotomayor joins the Court, as she surely will, it will not make the Roberts court appreciably better; for that, she’d have to be replacing one of the more reactionary Justices. Her appointment, much like Obama’s milquetoast stimulus package, will just keep what is very bad from getting even worse. But there was at least a chance for Democrats, even the milquetoast Democrats on the Judiciary Committee, to explain to a receptive public just how awful the Roberts court has been. So far, they haven’t done anything of the kind, and time is running out. It has been yet another “educative” moment lost.

Progress and Farce: the Sotomayor "Debate"

For most of the time since the idea of “democracy” emerged in ancient Greece, Western political thinkers, with a few exceptions, regarded the idea as unworkable or contemptible or both – in much the way that most political philosophers today regard the idea of “anarchy.” Significant support for “democracy” did not develop until late in the eighteenth century and the idea remained controversial for many decades thereafter. Well into the twentieth century, there were political formations that were officially “anti-democratic.” But with the defeat of fascism after World War II, that ended; everyone became a “democrat.” Lately, the consensus has been shaken in some parts of the world by the rise of theocratic regimes, but even “Islamic republics” do not expressly oppose democracy; indeed, some of them, Iran for example, are quite democratic according to many of the usual measures. But at the same time that there is near universal support for the idea, disagreements rage about what “democracy” is. The “peoples’ democracies” that not long ago abounded throughout the Eurasian landmass and that still survive in Eastern and South-Eastern Asia bear little resemblance, at an institutional level, to so-called “Western democracies” which, in turn, bear little resemblance to the “democracies” assumed by most philosophically minded democratic theorists. Thus nowadays the term is what philosophers call “essentially contested”; everyone or nearly everyone is a “democrat” at the same time that there is no consensus on what “democracy” is.

Nevertheless, the trajectory of “democracy’s” fortunes represents progress of a sort. It reflects an incontrovertible and probably irreversible fact: the emergence of the demos, the people (in contrast to elites), as full-fledged participants in the political scene, even as rule by elites remains unshaken everywhere. The fact that everyone now claims the democratic mantle as their own also shifts the nature of political debate in generally salutary ways. There is no consensus on what “democracy” is, but there is a consensus among “democrats” of all stripes on some points pertinent to that question; for instance, on the idea that political regimes are accountable, ultimately, to the people whose lives and destinies they control. The more consensus there is, even if only on vague generalities, the more constructive debates about what “democracy” really is and what “democrats” really want become.

There are many other essentially contested concepts in our political culture; for example, equality of opportunity. No one is against equal opportunity, but debates rage over what that ideal involves. To a large extent, this is what the debate over affirmative action is about; defenders defend preferences for certain classes of people as a way to equalize opportunities across the population; detractors reject special preferences for the same reason. “Freedom” is another example – who today is against it! – even as conceptions of freedom diverge significantly. It is the same with “justice.” In these cases and others as well, the gap between theory and practice cannot just be explained by hypocrisy and deception, though there is plainly no lack of either. There are also “philosophical” differences lurking beneath the nearly universal support these very general ideas now enjoy. That this is so shows that progress has been made; not nearly enough, but progress nevertheless. It shows that we are moving in the right direction, albeit at a tiny fraction of a snail’s pace.

Thanks to Barack Obama’s nomination of Sonia Sotomayor to become a Justice of the Supreme Court, it has become clear in recent days that “racism” or rather “anti-racism” has become an essentially contested concept too. Nearly everyone, it seems is officially against it – even blathering right-wing talk show hosts, Fox News pundits, and GOP luminaries. No doubt, this represents progress too. At least for the time being, we are past the days when overtly racist doctrines can become official state policy or when right-wing political movements expressly endorse racist views. Even the Jean-Marie Le Pens, Jörg Haiders, and Avigdor Liebermans of the world are obliged to pull their punches.

But in the Sotomayor “debate,” it is not like it is with “democracy,” and “equal opportunity,” or “freedom” or “justice.” This is not because there is nothing to discuss about what racism is. There are interesting questions that might be raised about that and about connections between racism and the various forms of ethno-centrism and theocracy that blight our planet’s politics. There are many questions to be asked; many debates to be engaged.

The reason why the current “debate” is unilluminating – indeed, farcical -- is that the right-wing drivellers and pundits have no coherent concept of what “racism” is. There is no “philosophy” underlying their comments, not even implicitly. For them, the word is just a tool to deploy to confuse and inflame.

[Or so I understand. My information about the latest from Rush Limbaugh, Glen Beck, G. Gordon Liddy, Pat Buchanan, Newt Gingrich, Tom Tancredo and a few others comes mainly from the copious examples adduced by Rachel Maddow on her show on MSNBC. I haven’t the stomach to watch Fox News, much less to listen to talk radio. Life is too short.]

No doubt, the Obama administration is subtly encouraging the blather; it is to the Democrats advantage, after all, when Republicans make a mockery of themselves. Obama is still preposterously popular, so perhaps the current spate of race-baiting in the guise of “anti-racism” is comparatively harmless. But, according to all the polls, at least a fifth of the American population is so benighted, so ignorant and so uninformed that Rush Limbaugh and the Fox pundits and, what is by now nearly the same thing, the Republicans do have a “base” they can rally by playing the “anti-racism” card; in fact, it seems that that’s the whole idea. But this is a dangerous game. As became evident in the presidential campaign last year, there are more than a few nativist, know-nothing, God-fearing bigots out there who can easily be driven over the edge. That this could happen in the guise of “anti-racism” is, I suppose, a development to be applauded. It is further evidence that progress has been made. But that will be small consolation, should the Limbaugh-listeners et. al. become unhinged. Even with an African American President and a Latina on the Supreme Court, it could still happen here.

Love Me, I'm a Moderate

For all I or anyone else knows, Sonia Sotomayor may turn out to be the best Supreme Court Justice going; after all, the competition is not very steep. Her qualifications are outstanding. And, although I’ve never been quite sure what “the American dream” is supposed to be, she surely exemplifies it. Then there is the welcome symbolism of elevating a Latina and a woman to the post. Some knowledgeable people question the intellectual depth of her rulings as an appellate judge; they wonder whether she can be a “liberal” counterweight to Antonin Scalia, the most overrated “conservative” (reactionary) Justice in recent history. Somehow they forget that anyone with the sense they were born with – Judge Judy, for example – could trounce Tony Two Vote (it was that second vote for Bush that unleashed the horrors of the past eight years) in any intellectual contest whatever.

In nominating her, Obama did good for a change. He also did something shrewd. As Republicans mobilize their “base” to oppose her, they will alienate themselves even more than they already have from the growing ranks of Hispanic voters, doing in their electoral prospects for the foreseeable future. They will also reveal themselves as the shallow, ignorant and mean-spirited fools they are; as if it isn’t clear enough already.

Yet, in promoting her nomination, the POP, the Party of Pusillanimity, the party that “won” the last election, stresses how “moderate” she is. Once again, Obama’s “bipartisanship” is running amok. It would be laughable, were it not of a piece with the rest of Obama’s practice of governance: maintaining the rule of law by obstructing the prosecution of the war criminals Cheney, Bush, et. al.; fixing the financial crisis by saving the fortunes of the Wall Street predators who brought it on; fixing the health care crisis by assuring that private insurance companies and Big Pharma will get the lion’s share of the “solution”; fixing George Bush’s wars by continuing the occupation of Iraq and, at great cost to “homeland security” and international order, escalating the war in Afghanistan. Call it “pragmatism” or “centrism” or “moderation.” It is fast becoming the hallmark of the Obama presidency.

Thus, until Sotomayor is confirmed, we will hear her praised endlessly for her “moderation.” New York Senator Charles (Schmucky Chucky) Schumer has been tapped to shepherd her through the confirmation process. The man is nothing if not a moderation freak. With the frequency that the lately loquacious Dick Cheney invokes 9/11, expect him to invoke the m-word. It will be a sickening spectacle for those of us who think that the Right, having lost the last election (which is not the same thing as the Left having won!), should not continue to rule. Meanwhile, we can only hope Sotomayor has the good sense and judicial temperament not to take the Obama-Schumer characterization of her to heart.