Obama: Notes from a civil rights attorney

Editor’s Note: The following article is written by Steve Bergstein, Planet Waves’ in-house civil rights lawyer and blogger for our Psychsound area. Today, he weighs in on the Obama presidency and the effects a constitutional law professor will have on the Supreme Court. –RA

WHAT DOES IT ALL MEAN? No one knows. People on my side of the political spectrum have never experienced this before. All we’ve known is failure and disappointment. I’m too young to remember Richard Nixon’s resignation in 1974. That must have been euphoric: the fall of a White House criminal. It’s been downhill ever since. Jimmy Carter generates no nostalgia, and Bill Clinton’s election in 1992 was fine as far as it went, if only because he ousted the first President Bush, but Clinton was a moderate centrist who sold out his values each and every day.

The way we feel about the election of Barack Obama will stay with us for a long time. He is not a bullshitter like Bill Clinton. We know he sees the world the way that we do, but that through necessity he will have to make compromises to work within the system and to avoid over-reaching. But as I wrote a few weeks ago, we know this about Obama: he will not start any bullshit wars like Iraq, and even if he is merely adequate at appointing federal judges, any of his choices would be an improvement over George W. Bush, who remade the federal judiciary in his own image.

Much will be written about the meaning of Obama’s victory. Let me talk about what it means to me. As a civil rights lawyer and a student of American political history, there is nothing more important to me than the court system. It was the federal courts in the 1950s and 1960s which made this country free. It was the federal courts which breathed life into the Bill of Rights, expansively interpreting the First Amendment, the rules against unreasonable search and seizures, false arrest, racial justice and all the other values that truly separate this country from the despotic regime that Dick Cheney fantasizes about when he goes to sleep at night.

The president’s most far-reaching legacy is the Supreme Court. His appointments will outlast his administration. These days, Supreme Court justices stay on the Court for at least 20 years, and advancements in physical health mean that some of them hang around will into their 80s. Richard Nixon may have fled the White House during the Watergate scandal in the mid-1970s, but he appointed four justices, including William Rehnquist, my all-time least favorite judge, who nearly always went the other way on civil and constitutional rights. Rehnquist’s decisions will be with us long after we die, which means that the tentacles of Richard Nixon will always be strangling us and our grandchildren.

As it now stands, of the nine justices on the Supreme Court, only two were appointed by Democrats: Ruth Bader Ginsburg and Stephen Breyer, both Clinton appointees. They are not leftists, but intellectually honest center-liberals. Ginsburg is in her 70s, and I don’t see her serving for another eight years. The two other liberals on the Court, John Paul Stevens and David Souter, are both Republican appointees who have a mind of their own and turned into wonderful judges who would sooner lay down in front of a John Deere tractor than allow for the erosion of civil liberties. That’s more than I can say for Clarence Thomas, a terrible judge who has gone out of his way to offend liberals and advocates of constitutional freedoms. But John Paul Stevens is 88 years old. That’s right, 88 years old. Souter reportedly doesn’t like Washington and could retire at any time. Steven and Souter will leave before Clarence Thomas does.

Need a scorecard yet? We have four liberals on the Court. The other five are conservatives, and they are young enough to outlast two Obama terms in the White House. They were appointed by more ideological presidents who wanted right wingers on the Court for decades. They have succeeded. The conventional wisdom — which I agree with — is that we now have four liberals, four conservatives, and one center-right justice on the Court who usually sides with the conservatives but sometimes steps in when the conservatives go too far. I’m talking about Anthony Kennedy, who has cast the critical vote to uphold abortion rights, the rights of detainees at Guantanamo and same-sex sodomy. The conservatives on the Court have moved so far to the right that Kennedy now looks like a moderate.

Do you see how fragile the current state of the Supreme Court is? Another Republican administration would have been the death knell for the advancement of civil rights. Most people do not pay attention to what the Court does, but Court-junkies know that the Supreme Court is the last bastion of civil rights and constitutional values in this country. That hangs in the balance as we speak.

The good news is that Obama and his Vice President, Joe Biden, will not allow for any Supreme Court shenanigans. I don’t say this as a fawning fan. I say this because both Obama and Biden were constitutional law professors. They know how important the Supreme Court is, and I am certain they are already thinking about who they would appoint to the Court once a vacancy opens up. We call this intelligent governance, something that has not existed in this country for many years. Never before have constitutional law professors held the Presidency and Vice Presidency. Out society does not value intellectual thinking, but this is a momentous occasion, though it shouldn’t surprise us. It’s like having a civil engineer serve as highway superintendent in your hometown. Over the last eight years we had an arsonist serve as the fire chief.

People may not remember this, but in 1987 Joe Biden was the U.S. senator who spearheaded the rejection of Reagan nominee Robert Bork for the Supreme Court. Bork would have been a disaster: a right wing ideologue with neither the temperament nor the grace to serve on the Court. Biden deserves a medal for this victory. Now he’s the Vice President. Some people wanted Hillary Clinton as Vice President. I wanted someone who scuttled the Bork nomination. Biden is a better choice than we think.

There are many things that give us hope as a result of this election. But hope is like potential: it hasn’t reached fruition yet. I don’t merely hope that Obama will save the Supreme Court. I know that he will do so. Allowing a constitutional law professor to pick Supreme Court justices is like allowing a baseball fanatic to select players for the Hall of Fame. They waited their whole life for that moment. Obama will not screw it up, I can assure you. It’s the first thing that I thought about when the networks announced Obama’s victory on Election night. It’s the first thing I thought about when I woke up the morning after the election. It’s an amazing feeling to know that everything is going to be all right. We have not felt this way for a very long time. And I, for one, will savor this moment.

For Planet Waves, this is

Steve Bergstein