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Late Night FDL: Court and Spark

I know late night is supposed to be lighthearted, but there’s been something I’ve been wanting to talk about and it’s not really what you’d call lighthearted. I’d really appreciate your being patient with me (you’ve been remarkably good about that so far…)

This past week I’ve been reading (mostly in less temperate climes than this, to be sure) that folks are going to sit out the election if their candidate doesn’t win. I find this disturbing. Let me tell you why.


These heartbreakingly young faces belonged to three young men named Michael Schwerner, James Chaney, and Andrew Goodman. They wanted to help.

Voting rights would play a central role in Mississippi in 1964 during Freedom Summer, when the Council of Federated Organizations and the Student Non-Violent Coordinating Committee, which included leaders like Fannie Lou Hamer, organized young northern college students to register black voters, form freedom schools, and investigate civil rights violations. Black Mississippians played a crucial role that summer working with and housing the students.

They’ve been dead for a long time now.

On June 21, 1964, three young civil rights workers—a 21-year-old black Mississippian, James Chaney, and two white New Yorkers, Andrew Goodman, 20, and Michael Schwerner, 24—were murdered near Philadelphia, in Nashoba County, Mississippi. They had been working to register black voters in Mississippi during Freedom Summer and had gone to investigate the burning of a black church. They were arrested by the police on trumped-up charges, imprisoned for several hours, and then released after dark into the hands of the Ku Klux Klan, who beat and murdered them. It was later proven in court that a conspiracy existed between members of Neshoba County’s law enforcement and the Ku Klux Klan to kill them.

The FBI arrested 18 men in October 1964, but state prosecutors refused to try the case, claiming lack of evidence. The federal government then stepped in, and the FBI arrested 18 in connection with the killings. In 1967, seven men were convicted on federal conspiracy charges and given sentences of three to ten years, but none served more than six. No one was tried on the charge or murder. The contemptible words of the presiding federal judge, William Cox, give an indication of Mississippi’s version of justice at the time: "They killed one ni—r, one Jew, and a white man. I gave them all what I thought they deserved.

All three of them – the native mississippian and his two visitors from the north – weren’t willing to sit still while citizens were denied the right to vote. They were killed for it.

Thing is: they won

For it was difficult to turn on the television without news of the Schwerner, Chaney and Goodman search. From late June to 4 August 1964, television regularly and consistently transmitted news of the tragedy to the entire nation. Television ultimately legitimated and lent new urgency to the decade- long struggle for basic human and civil rights that the Civil Rights Movement had difficulty achieving prior to the television age. The incessant gaze of the television cameras on the murders and disappearance of Schwerner, Chaney and Goodman, following on the heels of the Evers and Kennedy assassinations, resulted in mobilizing national support for the Civil Rights Movement. In fact, it was television’s coverage of the Civil Rights Movement’s crises and catastrophes that became a prelude to the medium’s subsequent involvement with and handling of the later social and political chaos surrounding the Black Power, Anti-War, Free Speech and Feminist Movements. As veteran civil rights reporters went on to cover the assassinations of Malcom X, Martin Luther King and Robert Kennedy, as well as the ghetto uprisings thereafter, a whole new visual and aural lexicon of crisis-television developed, one that in many ways still defines how television news is communicated.

By 1968, it was clear that television’s powerful and visceral images of the civil rights struggle had permeated many levels of American social and political reality. These images had helped garner support for such liberal legislation as the 1964 Voting Rights Act and President Lyndon B. Johnson’s ‘Great Society" and "War on Poverty" programs, all of which are legatees of the Civil Rights Movement.

although some disagreed

Understanding states’ rights helps to explain why Reagan launched his 1980 presidential campaign in Philadelphia, Mississippi. He was invited to do so by then-US Representative (later Senator and majority leader) Trent Lott. In Philadelphia Reagan endorsed states’ rights and in turn was endorsed by the Ku Klux Klan, which was present on that occasion. In 1964 Philadelphia was the site where civil rights workers Andrew Goodman, Michael Schwerner and James Chaney were murdered in the name of states’ rights as they attempted to register blacks to vote in Mississippi. In 1980 Reagan was sending a states’ rights signal to all conservatives, South and North, that their states would be given freedom even if it was at the expense of justice.

Link to the current election: that was the environment a young college student named Michelle Robinson had some issues with when she was attending Princeton

"My experiences at Princeton have made me far more aware of my ‘blackness’ than ever before," the future Mrs. Obama wrote in her thesis introduction. "I have found that at Princeton, no matter how liberal and open-minded some of my white professors and classmates try to be toward me, I sometimes feel like a visitor on campus; as if I really don’t belong. Regardless of the circumstances underwhich I interact with whites at Princeton, it often seems as if, to them, I will always be black first and a student second."

Another link: a young man applying for a job in Reagan’s Justice Department was less conflicted about issues of racial inclusion

Earlier this week, recently released documents drew attention for showing that, in a 1985 job application, Supreme Court nominee Samuel Alito ’72 wrote that he is "particularly proud" of his work on cases arguing that "racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."

Now, opponents to his nomination are using another piece of information from those documents to suggest he is far outside the mainstream in his political and social views: Near the end of his "Personal Qualifications Statement" for a high-level job in Ronald Reagan’s Justice Department, Alito wrote that he was "a member of the Concerned Alumni of Princeton University, a conservative alumni group."

What’s CAP?

To understand CAP, you really have to understand that until the late 60s, the almost total absence of black students at Princeton was a feature, not a bug. It was one of the reasons people went there.

"An alumnus wrote in 1974 in CAP’s magazine that “We had trusted the admissions office to select young men who could and would become part of the great Princeton tradition. In my day, [Dean of Student Affairs] Andy Brown would have been called to task for his open love affair with minorities.”"

"CAP supported a quota system to ensure that the vast majority of students would continue to be men. Asa Bushnell, then chairman of CAP, told the New York Times in 1974 that “Many Princeton graduates are unhappy over the fact that the administration has seen fit to abrogate the virtual guarantee that 800 [out of roughly 1,100] would continue to be the number of males in each freshman class.”"

And for those conservatives who oppose affirmative action on the grounds that we should pay no attention to gender or ethnicity:

"Another article published that same year bemoaned the fact that "the makeup of the Princeton student body has changed drastically for the worse" in recent years–Princeton had begun admitting women in 1969–and wondered aloud what might happen if the university adopted a "sex-blind" policy "removing limits on the number of women." In an unsuccessful effort to forestall this frightening development, the executive committee of CAP published a statement in December 1973 that affirmed unequivocally, "Concerned Alumni of Princeton opposes adoption of a sex-blind admission policy.""

So was Michelle Obama uncomfortable as a woman of color at Princeton?

Well then: one Supreme Court Justice who wouldn’t have ever happened without George W. Bush accomplished his youthful goals.

(Just hold on a little longer. We’re getting there)

So guess what. The poll tax? Courtesy of two Supreme Court Justices who would have never happened without George W. Bush, it may be coming back.

When Indiana adopted its voter-ID law in 2005—requiring voters to present a government-issued photo ID before casting a ballot—the state purported to be beating back the malodorous tide of vote fraud that was ostensibly sweeping the nation. But as professor Richard Hasen has ably demonstrated here in Slate, this vote-fraud epidemic is largely fictional. The major bipartisan draft fraud report (PDF) on the subject concluded there’s very little polling-place fraud in America. So, increasingly, the effort to stop fictional vote fraud looks like a partisan effort to suppress votes that tend to go to Democrats—and somehow, it’s always indigent, elderly, and minority voters who are disproportionately affected. A Republican-controlled legislature passed Indiana’s law on a party-line vote, and then a Republican governor signed it, and every judge to cast eyes upon it thereafter seemed to be for or against it based on his or her own political affiliation.The Indiana Democrats, joined by the ACLU and others, sued shortly after the voter-ID law was adopted. Both a federal district court and then the 7th Circuit Court of Appeals (in the most readable piece of legal writing in history) upheld the law. Judge Richard Posner, writing for the majority, argued that few registered voters, faced by the voter-ID requirement, "will say what the hell and not vote." Judge Terence Evans, retorting in dissent, was equally blunt: "Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic."

"But there’s not a single recorded example of voter impersonation fraud in Indiana," begins Smith, who should have been allowed to sit down after making just this argument. But the chief justice offers up two fine pretend arguments for the pretend law: 1) Pretend Vote Fraud might become a real problem someday; and 2) it’s so hard to detect that Pretend Vote Fraud might be a problem now—we just don’t know it yet. Let’s eradicate the pretend problem of invisible naked jugglers while we’re at it, then.

Justice Samuel Alito points out that a 2005 bipartisan commission on election reform, co-chaired by Jimmy Carter and former Secretary of State James Baker, also called for voter-ID laws. But Justice Ruth Bader Ginsburg reminds him that those IDs were supposed to be "easily and costlessly" procured over a period of time. Smith adds that the commission also found that 12 percent of eligible voters in this country don’t have a driver’s license.

See, they haven’t been able to prove any fraud, but just in case there is fraud, poor people should have to pay for a license they don’t need in order to vote. If they can pull this off, welcome back, poll tax.

So how does this all tie into this year’s election?

Thought you’d never ask.

Earlier this week, the Wall Street Journal’s John Fund and Robert Novak reported that Sen. John McCain, R-Ariz., had allegedly privately told conservatives that he would seek Supreme Court Justice nominees like John Roberts, but Samuel Alito might be a judge too far because Alito "wore his conservatism on his sleeve."…

The National Review’s Byron York asked McCain about it directly. "Let me just look you in the eye," the Arizona senator said, "I’ve said a thousand times on this campaign trail, I’ve said as often as I can, that I want to find clones of Alito and Roberts. I worked as hard as anybody to get them confirmed. I look you in the eye and tell you I’ve said a thousand times that I wanted Alito and Roberts. I have told anybody who will listen. I flat-out tell you I will have people as close to Roberts and Alito [as possible], and I am proud of my record of working to get them confirmed, and people who worked to get them confirmed will tell you how hard I worked."

Aw, he’s just saying that to get elected.

No, he just isn’t.

Now, with Giuliani out, several conservative legal stars who had been with the former New York mayor — including former solicitor general Ted Olson, an icon of the Federalist Society set — have signed on with McCain.

Today, two other influential ex-Giuliani lawyers — Steven Calabresi and John McGinnis — published an op-ed in the Wall Street Journal explaining their decision…

We make no apology for suggesting that electability must be a prime consideration. The expected value of any presidential candidate for the future of the American judiciary must be discounted by the probability that the candidate will not prevail in the election. For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. The party lives to fight another day and can reverse the bad policies of an intervening presidency. The judiciary is different. On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century.

There is much to support Calabresi’s and McGinnis’s diagnosis of the 2008 election’s importance for the future of the Supreme Court. Four movement conservatives — Antonin Scalia, Clarence Thomas, John Roberts, and Sam Alito — are on the nine-member court already. The latter three justices are also the court’s youngest members, so upcoming vacancies are more likely to mean the replacement of one or more liberal justices, including 88-year-old John Paul Stevens, than one of the four lock-step conservatives.

Thus, the next president, especially if he or she also wins re-election in 2012, will be in a position either to give adherents of the Federalist Society philosophy a dominating majority on the court for decades, or to block the conservative legal revolution just a few inches from the goal-line. In the short-term, a fifth movement conservative on the court would have dramatic consequences for the shape of constitutional law over such currently controversial matters as abortion rights, the death penalty, gay rights, affirmative action, environmental regulations, and the scope of the president’s power as commander-in-chief.

OK, now we’re back at the beginning.

Brave men who look to me from the promontory of my middle age like kids were willing to die – did die – so these evil fuckers wouldn’t win.

Now it’s down to us.

We can snatch the federalist society’s chance to rebuild the world in their own sick images away from them and see that they never get near a chance to hurt our country this way again.

Or you could decide that if your candidate doesn’t win the nomination you’d rather see McCain choose the next three or four Supreme Court Justices than vote for the other Democrat.

I’d like you to try and find a way to explain that would have convinced Michael Schwerner, James Chaney, and Andrew Goodman.

They died for this. All we have to do is reach out a hand and take it, which still leaves you one hand free to hold your nose if you need it.

Me, I think we owe it to them. I can do it either way.


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Middle-aged (thank god); married (oddly enough); native New Yorker; one (thoroughly magnificent, thanks) child, She Who Must Be Obeyed, aka HM (Her Majesty). But a mere lowly end-user by profession, and a former [pretty much everything, at least in somewhat limited first-world terms].

Extravagant (mostly organic) cook, slapdash (completely organic) gardener, brain space originally assigned to names and faces piled up with the overflow from the desperately overcrowded Old Movie and Broadway Trivia section, garage space which was originally assigned to a car piled up with boxes of books.

Dreadful housekeeper, indifferent dresser, takeout menu ninja and the proud owner of a major percentage of the partially finished crafts projects on the east coast of the continental United States.

The handsome gentleman in the picture is Hoa Hakananai'a. He joined the collection of the British Museum in 1868. His name, which is thought to mean "stolen or hidden friend," was given to him by his previous owners when he was collected.