Workers Vanguard No. 1141
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5 October 2018
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Democratic Hypocrites, Republican Bigots
Capitalist Parties Spar Over Supreme Court
Millions watched the second set of sordid hearings over Brett Kavanaugh, Trump’s ultra-reactionary pick for the Supreme Court. Dripping with contempt, the Republican white old boys on the Senate Judiciary Committee went to bat in defense of Kavanaugh’s “virtue” against allegations of attempted rape and other sexual abuse in his younger years. The Democrats, who had initially given their due deference—albeit critically—to Kavanaugh, now oozed with concern over his moral fitness to serve on the high court of racist American capitalism. With consummate hypocrisy, Democrats seized on the allegations to have their #MeToo moment, grandstanding as defenders of women’s rights without having to deal with such “divisive” issues as abortion on the eve of the midterm elections.
Disappeared from the media spotlight were the crimes and crimes-to-be of Kavanaugh, an avowed enemy of abortion rights, who is dedicated to rolling back black voting rights and other such gains as remain from the civil rights movement. His curriculum vitae includes advocating torture and indefinite detention for “enemy combatants” abroad and the racist death penalty and mass surveillance of the population at home. At bottom, the Democrats agree with their Republican counterparts, including Kavanaugh, on issues like the death penalty even if they are not as vocal in supporting them. Notwithstanding the Democrats’ posturing against torture, earlier this year six Democratic Senators provided the margin of victory to approve Trump’s nominee to run the CIA, Gina Haspel, who was an architect of the Bush/Cheney torture program. As for mass surveillance, the Obama administration was second to none.
The policy differences between the Democrats and Republicans represent different factions within a single capitalist ruling class. The capitalist class—the owners of industry and the banks—runs the Republican and Democratic parties, whose main distinction is not what they do but how they do it. The Democrats offer up the same anti-working-class program with a bit of bread and/or circuses, as the Roman emperors sometimes gave the plebeians.
Every capitalist politician lies for a living—and the biggest lie of all is that “the people” have any control over the government. The working class and the oppressed masses have no side in the donkey and elephant show about which bourgeois candidate wears the black robes. The Supreme Court is and always will be a reactionary institution that is part of the core of the capitalist state, which also includes the police, prisons and military. The purpose of this state is to defend the rule and profitability of American capitalism against the working class and oppressed through repression and subjugation. The rulers also rely on indoctrination and co-optation to maintain their reign.
Hoping to cash in at the polls in November, the Democrats are using the showdown over Kavanaugh as a proxy battle against the president, who they have attacked for his moral turpitude as part of their “resistance.” What really has the Democrats (and some Republicans) concerned is that the recklessness of the Trump administration, with its promotion of all-around bigotry, will threaten the image of American “democracy.” Supreme Court judge Elena Kagan warned that if people lose trust in the “integrity” of the system, they would “have no reason to accept what the court does.” As Marxists, we seek to puncture the illusions working people have in the institutions of capitalist class rule.
The recent decisions of the Supreme Court—from the anti-union Janus ruling to upholding Trump’s racist travel ban—are a harbinger of what reactionaries have in mind as they aim to overturn the 1973 Roe decision on abortion rights, which have been whittled away for decades with the acquiescence and collusion of the Democrats. What is desperately needed is militant class struggle alongside mass mobilizations of black people, women and the oppressed to strike a blow against the endless ruling-class onslaught. It is through the intervention of communist militants into such struggles that a multiracial revolutionary workers party will be forged as the necessary instrument to lead the fight for socialist revolution.
The liberals always counsel the masses to rely on some institution of the capitalist system, which includes the courts. This is a dead end that pegs the fate of the workers and the oppressed to what goes on in the class enemy’s government. Any significant gains—from unionization to black and women’s rights—have been wrested through hard-fought class and social struggle against the exploiters, their political parties and their state. That the capitalist rulers have been able to get away with so many attacks against working people and the oppressed is primarily because the labor movement has been on its back under the misleadership of the pro-capitalist union bureaucracy.
Judge Not Lest Ye Be Judged
The only person at the Kavanaugh hearings who exhibited any dignity and decency was Dr. Christine Blasey Ford, whose allegations that Kavanaugh attempted to rape her 36 years ago when she was a 15-year-old high school student exploded the confirmation proceedings. Her compelling testimony struck a chord among numerous women across the country. Victims of sexual violence are subjected to rigorous moral scrutiny by the authorities and courts, and face indifference, humiliation and threats. Obviously, we don’t know if Kavanaugh is guilty, but we can say that Blasey Ford’s testimony was believable and his was, as they say, hard to swallow. At the same time, we do not subscribe to the patronizing notion promoted by #MeToo and bourgeois feminists to “believe all women,” which reduces the horrific reality of sexual abuse to that of a faith-based belief that women always and forever speak the truth. The feminist #MeToo movement supports the capitalist system to which the subjugation and oppression of women is intrinsic.
A creature of privilege, Kavanaugh was a sports jock at the elite Georgetown Prep and later a frat rat at Yale, where he was also a member of an all-male “secret society” called Truth and Courage, popularly known as “tit and clit.” In his testimony, Kavanaugh feigned virginal purity: “devil’s triangle” was a “drinking game,” “boof” meant “flatulence,” “Renate Alumnius” referred to “innocent” dating. Sure. The chauvinist, entitled creeps spawned by the ruling-class cesspools that Kavanaugh comes from believe that abusing women and others deemed beneath them is their “God-given” right.
In the hearing, Kavanaugh launched a tirade, amid manufactured sobs, claiming he was the victim of a well-funded left-wing conspiracy. This was throwing red meat to Trump’s base, in particular the bible-thumping evangelicals for whom accusations of attempted rape play second fiddle to their drive to outlaw abortion. Trump boasted that Kavanaugh’s performance demonstrated why he had nominated him. Indeed. But the vote to advance his nomination by the Judiciary Committee, with its Republican majority, was not the shoo-in the administration thought it would be. Republican Senator Jeff Flake flaked and called for an FBI investigation. The involvement of the FBI was cause for celebration among Democrats, who champion the spies, torturers and murderers of the “deep state” as today’s freedom fighters against an unrestrained Trump.
Supreme Court of Injustice
Democrats point to the allegations against Kavanaugh as evidence that he lacks the moral integrity and honesty to serve on the Supreme Court. On the contrary. If appointed, Kavanaugh would join a long list of justices who in their time ruled that black people “had no rights which the white man was bound to respect”; proclaimed “separate but equal” segregation to be the law of the land; wielded anti-trust laws to attack unions, break strikes and hold the workers responsible for “damages” to the employer’s property; and upheld the internment of Japanese Americans in concentration camps in World War II. In the past several decades, Supreme Court decisions have shredded much of what reality there was to the Bill of Rights.
The Supreme Court was consciously designed as an anti-democratic protection for the ruling class against the masses. It was conceived by the founding fathers as part of the separation of powers among the executive, the legislative and judicial branches of government. This schema of “checks and balances” was crafted as a defense against what was considered the tyranny of the majority. In the words of Alexander Hamilton in The Federalist Papers (1788), the judiciary was intended to be a “barrier to the encroachments and oppressions of the representative body,” i.e., Congress, and “an essential safeguard against the effects of occasional ill humors in the society.”
To insulate the government against the “ill humors” of the masses, no one other than white male property owners was given the franchise. The president, elected through the Electoral College, was empowered to nominate Supreme Court judges who were then to be approved by the Senate, which until the early 20th century was installed by state legislatures. Invested with the power to overturn legislation and to effectively enact laws, Supreme Court justices are appointed for life with no “check” by the electorate.
The Federalist Society
In an article titled, “Brett Kavanaugh’s Wayward Penis: A New Twist” (CounterPunch, 26 September), William Kaufman notes, “Democrats have provided the margin of victory needed for nearly every right-wing Republican appointee who now sits on the Supreme Court, even when they had the votes to mount a blocking filibuster.” This includes current Chief Justice John Roberts as well as his fellow judges Samuel Alito and Clarence Thomas. Rolling the clock back a little further, the appointment of the (now-dead) arch-clerical reactionary Antonin Scalia sailed through without a single “nay” vote. What these judges have in common, together with Neil Gorsuch and a substantial number of the current federal judiciary, is their membership in the Federalist Society.
Since its founding in 1982, the Federalist Society, which is described as “the heirs of James Madison’s legacy,” has been dedicated to overturning the Civil Rights and Voting Rights Acts. James Madison, a slaveowner from Virginia and the fourth president of the U.S., is credited with being the father of the Constitution. The judges of the Federalist Society proclaim constitutional “originalism,” or adherence to the Constitution as it was originally written, which is the judicial equivalent of the racist call, “The South will rise again.” The original Constitution enshrined black chattel slavery and gave the slavocracy the whip hand of power by allowing Southern states to count black slaves as three-fifths of a person for the purpose of federal representation.
One might ask how Clarence Thomas, a black man, got into the Federalist Society. As we noted at the time of his nomination in “Supreme Court of Injustice” (WV No. 531, 19 July 1991), “Were it not for his skin color, Thomas’ political record would qualify him for membership in the KKK.” Indeed, his opposition to the 1954 Brown v. Topeka Board of Education decision, support for the racist death penalty and opposition to Roe v. Wade as an affront to “natural law” won Thomas the support of “former” Klan Grand Wizard David Duke.
As with Kavanaugh, what exploded the confirmation hearings for Thomas was not his judicial record but charges of sexual harassment brought by Anita Hill. The televised spectacle of the Senate fraternity of white male millionaires (and two women) sitting in judgment of Hill, a black woman, and Thomas, a black man, was a peculiarly American display of racism and sexism.
Thomas was the handpicked nominee of Bush Senior, who rode into office by fanning the flames of racist fearmongering against “black criminals.” Anita Hill, whose testimony was graphic and articulate and exuded credibility, was raked over the coals, slammed as a “vengeful woman” who had invented a “fantasy” because Thomas had “spurned” her. As we pointed out at the time, “Although pitched over the question of ‘sexual harassment,’ in fact the fight on Thomas’ nomination was over abortion rights” (“Sex, Race and Reaction,” WV No. 537, 25 October 1991). Still, Thomas was confirmed in a Senate where the Democrats had the majority.
Liberal Mythology and the Judiciary
For decades, liberals have been pushing reliance on the federal courts as the motor of social progress. Today, with the Republicans in control of the White House and both houses of Congress, liberals view the composition of the Supreme Court as decisive. This same outlook is shared by the pseudo-socialists of the International Socialist Organization (ISO). In their September 24 editorial (socialistworker.org), they claim that “Kavanaugh is unfit to determine what justice is on numerous grounds,” concluding with the main goal, “Stop Kavanaugh.” In another article, ISO honcho Lance Selfa (2 October) tries to give this abject reformism some kind of left cover, including by pointing out that the Supreme Court is the “least democratic part of the U.S. government.” Nonetheless, he lauds progressives and some liberals for “advocating structural reforms to weaken the conservative hold on the courts,” linking to an Intercept article (30 September) that advocates packing the Court with Democrats.
Contrary to the ISO’s fantasy, Marxists understand that the capitalist courts cannot be taken over and made to operate in the interests of working people. Under capitalism, whatever its constitutional format—be it a democratic republic, a constitutional monarchy or a fascist dictatorship—the judiciary is an arm of the bourgeois state which, as Friedrich Engels pointed out, “is an organization for the protection of the possessing class against the non-possessing class.” This is as true of the liberal Supreme Court justices as of the right-wing ones.
Those who promote illusions in the courts often refer to the Supreme Court era ushered in by the 1954 Brown decision under Chief Justice Earl Warren, who retired in 1969 after serving under both Republican and Democratic administrations. Warren, himself a Republican, earned his spurs as Alameda County district attorney in orchestrating the 1936 redbaiting frame-up trial of three organizers of the Marine Firemen’s union on charges of murdering the chief engineer on the SS Point Lobos. Later as California attorney general during World War II, he spearheaded a drive to evict and put Japanese Americans in camps.
What conditioned the rulings of the Warren Court (which included Hugo Black, a former Klansman) was not its “progressiveness,” but the mass struggles of the period, beginning with the civil rights movement through to the mass protests against the Vietnam War. Concerned that this radicalism could spill over into a restive working class, the capitalist rulers recognized the need to contain it. It was in this tumultuous period that the Court made a number of decisions affirming particular civil liberties, such as ruling that defendants had the right to counsel. In 1972 the Court declared the death penalty unconstitutional as practiced and prompted states to rewrite their laws. A year later came the landmark Roe decision.
But this was a brief moment in American history. After the U.S. withdrawal from Vietnam, the antiwar movement fell apart. Many black radicals who weren’t murdered by the FBI or imprisoned were co-opted by the Democratic Party. Underlining that reforms under capitalism are reversible, the Supreme Court, with few personnel changes, immediately began to roll back the gains of the previous two decades, marked by the restoration of the death penalty in 1976. This went along with a bipartisan onslaught against working people, carried out by Reagan and the Bushes, as well as by Carter, Clinton and Obama, which included the gutting of affirmative action and welfare and the evisceration of habeas corpus, to name a few.
Today, the U.S. imperialist bourgeoisie is the foremost enemy of workers and the oppressed around the world. In the U.S., this is expressed not only in the increasing attacks on the black masses and the working class but in the growing influence of Dark Ages attitudes toward sex and women. The piggishness and revolting hypocrisy of the bourgeoisie are a measure of the decrepitude of this outmoded capitalist system. For our part, we seek to do away with the Supreme Court along with the imperial presidency and all the institutions of the bourgeois state, as part of a thoroughgoing socialist revolution which will place the only progressive class, the proletariat, at the helm of society.
