Book by John Maxwell

How to Make Our Own News: A Primer for Environmentalist and Journalists

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The Artful Dodger

By John Maxwell

My friend, Queen’s Counsel Vivian Blake, was a man of unimpeachable integrity as well as a great lawyer, one of the very greatest. A few years before he died he told me a joke about his own profession. 

Three men, he said, were in line for the chief executive’s job at a certain company and the selection board was having a difficult time deciding between them. Finally the Chairman convinced the Board to leave the selection to him. 

Scalia than Thou.

The selection of a new Justice for the US Supreme court may seem miles away from Jamaica and our concerns. In reality it is very important to us. The US Founding Fathers promised that the US would pay decent respect to the opinions of other nations,  to the concerns of the rest of the world: 

President Bush’s  latest nominee to the US Supreme Court, Judge Samuel Alito has dismissed the rest of the world as of no account. In this he was going against years of precedent in which the courts of the world, including the US, increasingly look at decisions in other jurisdictions for guidance in deciding difficult or novel  questions.

The President of the United States has made it abundantly clear that what happens outside the United States is of no concern to him unless he believes it involves the security interests of the United States. Those interests can be broadly interpreted, as for instance, in the American kidnapping of Aristide from Haiti or the invasion of Iraq. 

And the US Secretary of State, Condoleezza Rice has made it plain that there is one law for the US and another for the rest of the world. In a speech two days ago, she complained about the offensive behaviour of the Iranian president, who she said, has been openly confronting the international system since his inauguration. He is clearly, not entitled to follow the example of Mr Bush. And Mr Bush and his minions are quietly closing the curtains and locking the doors against the intrusion of the real world.

The appointment of Judge Alito to the Supreme Court is another, and decisive move to clothe the President of the United States in an impunity which will protect him against foreign and domestic criticism.

He will be able to order torture, domestic espionage and whatever else he chooses, backed by a Supreme Court which will soon be even Scalia than it has been. The only hope for us is that Judge Alito’s finicky nature will put Clarence Thomas in his proper place and provoke him to rebel. Except that Clarence may prove even more Step’n Fetchit than Uncle Tom. 

The Senate Judiciary Committee attempted to elicit Mr Alito’s views on a variety of subjects, to get a feel of the man they were asked to appoint to a lifetime job as one of the nine supreme arbiters of the Laws of the United States, and increasingly, of the laws governing the planet.

Mr Alito did to the senators what the Senators might have thought about doing to him. He filibustered them into impotent frustration. A most meticulous man, who can quote obscure  precedents off the top  of his head, he could not remember simple facts. One of them was why he had thought, 20 years ago, that he might gain preferment by mentioning on a job application that he had been a member of a racist, misogynist and activist  student ‘eating club’ at Princeton University. This meticulous man, who can probably remember the last occasion on which he belched, somehow overlooked his promise to recuse himself from any case involving the mutual fund (unit trust) in which his millions are invested. 

Yet, in his sedulous campaign to cover his tracks, Mr Alito did provide some important clues to his probable behaviour of the new right-wing majority on the Supreme Court. 

The New York Times, not exactly a fire breathing liberal hangout, said on Thursday:

“Some commentators are complaining that Judge Samuel Alito Jr.'s confirmation hearings have not been exciting, but they must not have been paying attention. We learned that Judge Alito had once declared that Judge Robert Bork – whose Supreme Court nomination was defeated because of his legal extremism – "was one of the most outstanding nominees" of the 20th century.

We heard Judge Alito refuse to call Roe v. Wade "settled law," as Chief Justice John Roberts did at his confirmation hearings. And we learned that Judge Alito subscribes to troubling views about presidential power.

Those are just a few of the quiet bombshells that have dropped. In his deadpan bureaucrat's voice, Judge Alito has said some truly disturbing things about his view of the law. In three days of testimony, he has given the American people reasons to be worried – and senators reasons to oppose his nomination. “

The New York Times then goes on to detail serious shortcomings it has detected in Judge Alito’s judicial makeup, among them:

• “Evidence of extremism,” in his unqualified praise, for Robert Bork, an extreme right-winger who was rejected by the Senate when he was nominated for the Supreme Court in the 80s.

 • “Opposition to Roe v Wade,” the landmark case giving American women the right to abortions.

• ”Support for an Imperial presidency.” By backing an extremist concept known as the ‘unitary presidency” Alito supports almost unlimited power for the President, superseding the idea of checks and balances.

• Insensitivity to ordinary Americans’ rights.  

Professor Martin Garbus says “ Alito's muffled views on race and gender, two of the most important issues facing the country, are pernicious. Alito does not attack women or African-Americans directly. He just refuses to believe their testimony.”

In relation to a specific case alleging discrimination Garbus says: “…Alito wanted to use Barbara Sheridan's case to do more. He wanted to change the burden of proof in Civil Rights discrimination cases – make the employee prove racial, gender or age discrimination rather than placing the burden on the company to prove they had a valid reason for firing her. That seemingly small procedural change would reverse the result in well over 90% of discrimination suits.”

• Doubts about the nominee’s honesty. The Times is concerned about his evasions on his membership of that notorious Princeton club and his evasions about his recusal avoidance in the mutual fund issue. The New York Times is disturbed by all this and  says “The debate over Judge Alito is generally presented as one between Republicans and Democrats. But his testimony should trouble moderate Republicans, especially those who favor abortion rights or are concerned about presidential excesses. The hearings may be short on fireworks, but they have produced, through Judge Alito's words, an array of reasons to be concerned about this nomination. ”They do indeed trouble moderate Republicans and others.”

 The National Association of Women lawyers find Alito unqualified to be on the Supreme Court because of his known and explicit hostility to women’s rights:

By filibustering the committee, Judge Alito has managed to slip under the fence and seems now likely to be appointed to the Supreme Court. Part of the problem is that the Senate cannot compel the people before it to answer their questions. Another is that the Republicans are breeding a cadre of right-wing lawyers who are careful to cover their tracks so that they can indeed slip under the radar and under the fence.

The scenario reminds me of a novel from the 70s – The Boys from Brazil, in which effectively, the notorious Nazi experimenter Dr Mengele, managed to clone a number of little Hitler’s in seclusion in Brazil, from where they would be let loose upon an unsuspecting world to inaugurate the Fourth Reich, worldwide.

A Coup by any other name

One of the more poignant moments in the hearings came close to the beginning, when Senator Patrick Leahy,    himself the child of immigrants, asked Alito how could he, with his immigrant background, allow himself to be associated with the neo-Nazis of the Princeton undergraduate eating club. As in most other questions, there was no real answer. 

When W. E. B Du Bois, a century ago, prophesied that the problem of the twentieth century would be the problem of the colour line, he was a hundred years too early.

The problems of lynching and discrimination, of segregation and an apartheid culture were more or less blown away during the twentieth century, although huge elements remain as the prison population of the United States and the economic situation and disfranchisement of blacks  bears witness. But there was a much more subtle danger lurking beneath all that and it came from an area Du Bois would never have suspected. 

It came out of the new American  racist fundamentalism best expressed by the Mormons combined with the dream of deliverance nurtured by immigrants fleeing persecution or economic distress in Europe, mixed with the myth that wealth was there for the taking (“Go West, young man’) and the  the nostrums of Horatio Alger plus the preachments of Ayn Rand “selfishness is the only virtue”.

Mr Bush’s recommendation that Creationism be taught in schools is simply another excuse to provide another pseudo-scientific justification for Mormon-style biblically ‘justifiable racism. 

The world would be perfect if only it were left to the Chosen People, and the German ethnic minority – until quite recently the largest in the US – has historically been more than simply sympathetic to the doctrines of Hitler, Himmler, Goebbels & Co.. It was not an accident that these doctrines were sympathetically embraced by American capitalists, including Henry Ford and President Bush’s grandfather, Senator Prescott Bush. 

The ties of American and German capitalism were weakened but not broken by the second world war. In time, even the Jews of the United States, mainly central Europeans themselves, began to be seduced by these new gospels. Alan Greenspan keeps Ayn Rand by his bedside and reads a text from it every night before he goes to sleep. The neocons, Jews and Gentiles alike, are trapped in the same hysterical myth.

This noxious mix came to a somewhat premature flowering in Murray and Herrnstein’s “Bell Curve” in which paradise was a gated world, secure from assault by blacks and other ‘races’ without the law, pullulating in their indigent misery – without hope of posterity or prosperity.

It is an ideal well expressed by one of my correspondents two weeks ago. He said:

My reply to him was succinct:

The problem is, of course, that the world cannot get rid of the Alitos and their ilk by sarcasm.

In his opening statement, Senator Patrick Leahy said that he would be asking questions to ensure that the American people got a judge worthy of the Supreme Court. “That means knowing more about Samuel Alito’s work in the government and knowing more about his views. I will, as the judge knows, ask about the disturbing memorandum he wrote to become a political appointee in the Meese Justice Department. In that, he professed concern with the fundamental principle of one person, one vote, a principle of the equality that’s the bedrock of our laws.”

He got no answer to that question nor to any other. 

Copyright © 2006 John Maxwell jonmax@mac.com

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posted 14 January 2006