Wednesday, August 20, 2003
Conservatives are evilYesterday the New York Times came up with yet another of those well-some-Republicans-are-okay-but-these-extremists-in-Washington-now-are-modern-day-Torquemadas editorials they're so famous for. This time, it didn't come from Paul Krugman, but from editorial board member Adam Cohen, who is allegedly an attorney. (I say "allegedly" for reasons that will be made clear.)
He describes the National Constitution Center, a new museum in Philadelphia devoted to (you guessed it) the Constitution, as a wonderful, inspiring place that tells "a largely triumphal story of rights recognized and new groups woven into the fabric of the nation." You can practically hear the trumpets in the background. But now (cue ominous music) George Bush and his evil comrades want to change all that, taking away the right to vote from women and re-enslaving blacks. Or something like that; Cohen doesn't come out and say precisely that, but he implies it as strongly as possible without doing so. But holding out the spectres of Dred Scott and the Chinese Exclusion Act is just the beginning for Cohen; he then goes on to slander specific nominees of Bush's:
One Bush choice for the courts, Michael McConnell, now a federal appeals court judge, has argued that the Supreme Court was wrong to rule that the equal protection clause required legislative districts with roughly equal numbers of people.Here's why I question Cohen's credentials as a lawyer: he can't tell the difference between an argument about what the law is and an argument about what the law ought to be. It's one of the first things one learns in law school, but Cohen has problems with it. It's possible that Michael McConnell is secretly a Klansman, dreaming up ways to keep blacks down. But that has nothing to do with the discussion; McConnell makes a scholarly argument that the Supreme Court misinterpreted a law. Does Cohen not know that, or does he not care?
Jay Bybee, also now an appeals court judge, has argued, incredibly, that the 17th Amendment should be repealed, and United States senators once again selected by state legislators.And? What's so "incredible" about that? It may be a good idea; it may be a bad idea. But why is Cohen so horrified by it? Cohen doesn't say. He provides no context for Bybee's statement, nor does he let anybody know why this particular amendment is so important in the arena of civil rights, which was the framework for Cohen's discussion. People for the American Way, in their denunciation of Bybee, argues that it's "anti-democratic" and "turning back the clock on representative government" to repeal the 17th. But (a) given that state legislatures are democratically elected, it is in fact neither of those things, and (b) given that the whole Bill of Rights which PFAW and Cohen celebrate is anti-democratic, that's not a very compelling criticism standing alone.
William Pryor, a nominee to the United States Court of Appeals for the 11th Circuit, urged Congress to repeal an important part of the Voting Rights Act.He urged Congress to repeal a provision of the Voting Rights Act, Section 5, which requires Justice Department preclearance before certain portions of certain states make even trivial changes in voting procedures. Since the Justice Department rarely objects to these changes, there's little purpose to the law. Repealing it wouldn't change the substantive rights of anybody; it would just streamline bureaucratic procedures. Cohen demagogues this to make it sound as if Pryor is trying to repeal voting rights for blacks -- but again, is vague enough that most readers won't know the difference.
President Bush has said he wants to appoint judges like Clarence Thomas and Justice Scalia, both embarked on campaigns to undo years of constitutional progress.Not all change, of course, is progress, and in any case, Cohen provides no evidence for this assertion. "Judges like Clarence Thomas and Justice Scalia" want to change the way judges work; Cohen again either can't discern, or refuses to acknowledge, the difference between statements about what the law should be and statements about what the law are.
Justice Scalia advocates tying Americans' rights today to the prevailing wisdom of the 18th century. In a petulant dissent in the recent sodomy decision, he argued that gay sex can be criminalized now because it was a crime in the 13 original states.Actually, Justice Scalia advocates tying Americans' rights today to two things: the Constitution, and the prevailing wisdom of the 21st century. He argues that judges ought to apply the Constitution rather than their personal views, and, on issues where the Constitution is silent, that democratically elected legislatures ought to decide. He argues that gay sex isn't forbidden by the Constitution for the simple reason that nothing in the Constitution addresses the issue; he argues that it can be criminalized now because the "prevailing wisdom" in Texas now says so.
Justice Thomas offered the dangerous argument in last year's school voucher case that states should be less bound by the Bill of Rights than the federal government.A flat out lie. That one seemed bizarre, so I checked it out. Thomas argued, in the school voucher case, that the states should be less bound by the establishment clause than the federal government. Here's what he actually wrote:
Consequently, in the context of the Establishment Clause, it may well be that state action should be evaluated on different terms than similar action by the Federal Government. "States, while bound to observe strict neutrality, should be freer to experiment with involvement [in religion]--on a neutral basis--than the Federal Government." Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 699 (1970) (Harlan, J., concurring). Thus, while the Federal Government may "make no law respecting an establishment of religion," the States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest. By considering the particular religious liberty right alleged to be invaded by a State, federal courts can strike a proper balance between the demands of the Fourteenth Amendment on the one hand and the federalism prerogatives of States on the other.Not only does Thomas not make a claim about the "Bill of Rights," but he doesn't make the claim that states can establish a religion or discriminate on the basis of religion. Again, Cohen tries to turn a legal argument about the interpretation of a particular amendment into a claim that a conservative judge wants to revive lynchings.
Reasonable people can disagree on some of these issues of legal interpretation, but Cohen doesn't even try. He just race-baits in the hopes that nobody will notice the paucity of logic, facts, or fairness in his column. When Republicans attempted, unconvincingly, to claim that Democratic opposition to Bill Pryor was based on anti-Catholic bias, the New York Times had a tantrum. And yet the Times' editorial writer has no problem insinuating that George Bush and his gang -- including the black Clarence Thomas -- want to take away basic rights from blacks and women.
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