If Anita Hill is the Model, We Are Screwed

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.

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.

Link to Medium publication -> https://medium.com/libertarian-socialism-american-style

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