If the Supreme Court's 1954 ruling in Brown v. Board of Education can be said to have opened the epic of the modern civil rights era, it is now also possible to mark that era's final, exhausted page: January 31, 2006.
It was not just the confirmation that day of Samuel Alito, whose constricted notion of law is likely to turn the Supreme Court definitively against Brown's expansive promise and the other liberation movements it inspired, or the death of Coretta Scott King, so soon after the passing of Rosa Parks. Rather, the rise of Alito and the death of Coretta King illuminate the abandonment by both political parties of the civil rights legacy. President Bush, in his State of the Union message, managed to eulogize Coretta King without a single mention of the words "civil rights" or "discrimination." And among Democratic senators, barely half mustered the fortitude to support the attempted filibuster against Alito, which would at least have served as a national call to conscience on the importance of the Court as a guarantor of rights.
The Democrats have been outmaneuvered not just on Alito but on the entire federal judiciary, and the cost is far more than a single US Supreme Court seat. In a telephone press conference Monday afternoon, Senator Ted Kennedy put it bluntly. Last year, he said, in the compromise over President Bush's court appointments, "We took three very, very bad judges. We thought we'd be preserving the filibuster for the Supreme Court. Then for President Bush's first Supreme Court nominee we couldn't filibuster because we should hold it for someone who is worse." Then someone who was worse showed up--and a filibuster was deemed obstructionist.
Alito, Kennedy points out, is not the bottom of the well. Now President Bush has again nominated William Haynes for a federal judgeship. As general counsel for the Defense Department, Haynes promoted coercive interrogations and abandonment of Geneva Convention status for Iraq prisoners. He is, as Kennedy puts it, the Administration's "architect of torture." No doubt Haynes, too, will be insufficiently extreme to warrant political risk.
Democrats have been quick to point out how the Bush Administration has politicized the confirmation process at all levels of the judiciary, and in particular bemoaned the careful Supreme Court nomination strategy initiated by C. Boyden Gray and other legal conservatives more than a year ago.
But Gray's war plan for Alito was hardly a secret. Neither was his ability to secure Democratic votes for a dangerously far-right nominee. In 1991, as the first President Bush's White House counsel, Gray shepherded the equally politicized Clarence Thomas nomination to approval by a Democrat-controlled Senate. Thomas, it should be remembered, had pledged fealty to an idiosyncratic grab bag of far- right positions, repeatedly misrepresented his own record and overcame all of that with a winning personal story. Fool me once.
The truth is that for a generation, while Edwin Meese and William Rehnquist, the godfathers of the legal right, built the Federalist Society into a potent patronage network, Democratic politicians squabbled among themselves about whether an overly assertive commitment to civil rights would cost too many votes--effectively leaving civil rights lawyers to fight a fading rearguard action in increasingly hostile courts.
Senator John Kerry's attempt at an Alito filibuster and Kennedy's observation on the Senate floor that the Constitution's framers failed when it came to slavery, represent the Democratic Party's most honorable tradition. But it can only honor the memory of Coretta King to point out that Democratic Party power brokers have always shown ambivalence to civil rights--except when pushed hard from below. As late as 1964 the Mississippi Freedom Democratic Party was locked out of the Democratic National Convention; and ever since Richard Nixon's 1968 victory, the pollsters and campaign consultants have found ever-new ways of telling Democrats that they can't win on civil rights, that they can't win by offending too many white males. (No one listened more to that advice than Bill Clinton, which is why despite many eloquent words he never took a single real risk on a civil rights issue. So let it be noted for the record that among leading presidential aspirants it was Kerry, not Hillary Clinton, who initiated the filibuster.)
It is time to face reality: If Democratic senators lacked an effective strategy to hold back Alito, and if Democrats have not developed their own scheme to win back the courts, it is because so many Democratic senators did not want to. Brown and Roe remain on the books, but what remains of their egalitarian promise will be hollowed out by the hard-right bloc of Scalia, Thomas, Roberts and Alito. When it comes to the challenges of civil rights, Democrats have sown apathy and avoidance. Now we reap the whirlwind.