In the hearings about Sonia Sotomayor this week, each senator made a political, at times quasi-legal speech about his views of the matter. It is a committee largely of white men. Except for Lindsay Graham, the Republicans often made fools of themselves. Graham cagily announced that he might vote for Sotomayor – actually, concurring with Obama – but that he disagrees with the criteria on which he thinks Obama voted as a Senator. But the most significant moment, for me, came in an account by Benjamin Cardin of Maryland of the significance of Brown v. Board of Education for his life, growing up as a jew, in Maryland. Maryland was the South (I once went on a freedom ride to Chestertown, Maryland). Private clubs and perhaps some restaurants had signs: No negroes or jews allowed. For a long time, there was an alliance of blacks and jews, of those oppressed, against American racism. Cardin’s story brought it again to life. What is the meaning of Obama’s nomination of Sotomayor? She is a serious, moderate judge. But she was also an activist against discrimination against Puerto Ricans (and others). Obama and others rightly speak of the importance of empathy. Having grown up with a devoted mother in a slum in the Bronx, Sotomayor knows something about life which Justice Roberts – calling “balls and strikes,” as Jeffrey Toobin recently pointed out entirely for the corporations and the government, an “umpire” self-programmed to render verdicts only on behalf of money and power – does not. Year by year, the Roberts court erodes the voting rights act, strikes again against Brown v. Board of Education (it may leave this great precedent intact, but, through every particular decision, it will render its spirit increasingly a shell). But even Sotomayor’s existence in a white male elite challenges its bigotry. For all those who sacrificed, for instance my friend Andy Goodman who met his death in Philadelphia, Mississippi, the nomination and likely appointment of Sonia Sotomayor is a triumph of the great democratic wave which created and extended Brown, of democracy in America.
The neoconservatives, stemming from Leo Strauss (even Irving Kristol, who wrote Neoconservatism: the Autobiograpy of an Idea is an enthusiast for Strauss), are bipartisan in the sense that they have worked for Democrats like Moynihan and Scoop Jackson as well as Republicans. Though they have damaged America fundamentally through aggressions waged ineffectually and at immense cost, wanton brutality and torture, and a fantasy reliance on weapons, they will, continue, as critics with high positions (the Washington Post op-ed page, for example), to shape moves in foreign policy in the complex two-step of the two corporate-dominated mainstream parties. Obama is setting a new direction, for instance with the Sotomayor appointment (see here), But the dangers in his policies, in the war in Afghanistan and Pakistan and in retaining state secrets, trying to, at least on the surface, protect the war criminals of the previous administration, are real enough. Still among former Trotskyists like Kristol, neoconservatism emerged in opposing the entry of blacks into college, of fearing blacks. Today one might neglect the underlying racism which is a core feature of the neoconservatism as an intellectual movement, shaping it before the emergence of its more recent international belligerence (of course, even the latter is racist; Iraqis are empty slates who may be molded by American brutality into preferring whatever Bush, Wolfowitz et al think of as "democracy").
A startling sign of this, one quite hard to place for many who admire Leo Strauss as a conservative is that Leo Strauss was, on arcane grounds, an enemy of Brown v. Board of Education. In researching in the Regenstein Library at Chicago last September, I studied letters between Strauss and Robert Goldwin, his most political student who rose high in the Ford administration and as an advisor to Donald Rumsfeld and Richard Cheney. In these letters, Strauss advises Goldwin in setting up the Public Affairs Conference at the University of Chicago. Officially, Strauss's title is “executive consultant.” But he makes clear that the Public Affairs Commission, of which his student Goldwin is the head, is “my business.”
The Public Affairs conferences involved prominent political, economic and media figures – Senator Charles Percy, the candidate for the Republican Presidential nomination, Henry Jackson, Henry Kissinger, Eric Sevareid, Hans Speier, head of the Rand Corporation, and students of Strauss – though perhaps, to represent the position Strauss seeks to oppose an occasional liberal. On June 21, 1961, Goldwin listed the nonacademics at one conference:
“On the non-academic side, we have acceptances already from Mr. Percy, Thomas Watson (chairman of the Board of IBM), Emmet Hughes (Eisenhower’s former speech writer and now chief advisor and writer for Gov. Rockefeller) and Senator Muskie of Maine. We will invite, in addition, Congressman Ford of Michigan ( who attended the first conference and who is a member of the Appropriations Committee and of the subcommittee on defense appropriations), Senator Henry Jackson of Washington (a member of the Armed Services Committee), George McGhee (head of the State Department Policy Planning Staff), Eric Sevareid, and Crawford Greenewalt, president of Dupont Co. We also want to invite a Republican member of the Armed Services committee, but I am awaiting Muskie’s advice on the best one for our purpose. For a military man, Osgood suggested Maxwell Taylor; I objected that he would be busy with his study of the CIA; Osgood replied that it is now finished and that he would have time; but yesterday’s Times reported that he will be appointed Kennedy’s military aide; we will thus probably have to reconsider. I will ask Osgood what he thinks of Rickover for this kind of meeting.
I have mentioned all these names as a preface to asking you about Hans Speier…”
Goldwin would evolve to sponsor conferences which while, on balance Straussian, nonetheless included academics who differed with them. If one may judge from his many edited publications of these meetings, he became quite a good organizer of such events. For Strauss, the point was to make American foreign policy more belligerent, to take out Cuba, as I indicated in a previous post here. Emulating the Athenian Stranger in Plato’s Laws, Strauss and his students acted to make American foreign policy more brutal and reactionary, as brutal as the USSR had been in suppressing Hungary in 1956. In this, Strauss created a pattern which has since been embodied in the sect (the sect is mainly those Straussians who have gone into politics plus some academics like Mansfield, Cropsey, Jaffa, et al).
On the extreme right in American politics or more exactly, aiming to move tyrannical politics toward blacks of the one-Party South – Democrats by day, the KKK by night - in a reactionary direction, Strauss also used these meetings to attack Brown v. Board of Education. The brief Brown decision focuses famously in footnote 11 on social science, particularly the doll studies of Mamie and Kenneth Clarke as well as the works of Gunnar Myrdal and Ashley Montagu. A common cliché about Strauss is that he was simply interested in great thinkers or as he put it “philosophers” and had little time for politics. Among philosophers, he opposed racism, taking Arabs like Al-Farabi as masters as much as Maimonides, and training lively students – Muhsin Mahdi, Charles Butterworth, Ralph Lerner – in Arab political thought. But he could forget his seemingly most famous point in scholarship, his critique of value-freedom, to argue against Brown v. Board as a leading practical example of the despised “SS.” Rightly and self-awaredly, none of the studies cited in footnote 11 claim to be "value-free," (it is particularly sad and ironic that a German Jew would use this symbol of the Schutzstaffel, the dreaded Nazi secret police, as an acronym for social science). Strauss speaks to Goldwin directly as a student and addresses Strauss’s own role as the driving force in creating and furthering the subtle (not entirely even to invitees), political aims of the Public Affairs Center. To Goldwin on February 13, 1961, Strauss wrote:
“Dear Mr. Goldwin,
I thank you for your informative letter of February 7. In a way the most important piece of news it contained was the promise of your return to Locke. But I turn immediately to my business. I am especially interested in a plan of having a debate on SS and its political consequences in the last generation.…I shall illustrate what I have in mind by two examples. 1) Economics and its limitations regarding economic policy, i.e. at what typical points ‘prudence’ or ‘common sense’ has to supplement the hand –outs of economic science. Milton Friedman ought to be in on this. You can get ample clarification regarding both subject matter and personnel from Mr. Cropsey. 2) Desegregation and the findings of SS which allegedly demand desegregation. Here I would think we should have a guy from the deep south, say Dean H[W]iggins, a sociologist at Emory. Such a conference could be educative for the non-academicians by making clear to them what they cannot expect from the academicians.”
Against welfare state or Keynsian intervention (he hates the Democrats, incarnated by John F. Kennedy), Strauss seeks to further laissez-faire in economics. He wants to involve Milton Friedman (as I mentioned to Robert Howse in the video here, Strauss aimed to cooperate with Friedman and the “Chicago” boys; his interests prefigure Reagan and what has followed). More importantly, however, he opposes the “SS” – which appears in the Supreme Court decision. With Strauss’s counsel, Goldwin had invited the segregationist Virginia newspaper editor James Kilpatrick to present one of four papers at their first conference. Goldwin regarded Kilpatrick as providing the leavening force, the lively or brilliant paper that would make the conference. On December 17, 1960, he wrote to Strauss,
“Here is the paper by Mr. Kilpatrick, just received. His assignment was to make the case that a reassertion of States’ rights would add to the essential strength of the United States in its present situation. His response in the light of the assignment speaks volumes Everything proceeds smoothly now, though in a great rush.”
Here is a strain of argument – what contributes to “the essential strength of the United States” – which is vital to Strauss’s understanding; hence, Strauss cooperated with the crude and murderous racism – sad for a Jew who had lived with this in Germany and saw its height in Nazism - of the segregationists Following Max Weber whom he had admired before being mesmerized by Heidegger – two intense German nationalists - he set his orientation in political theory, as Weber had in sociology, by great power politics (see my Democratic Individuality, ch. 11). But as a fan of empire (the Prussian empire, the Anglo-Saxon empire in his speeches during World War II, the American empire against the Soviet empire), he recommended the fiercest brutality to scare the USSR, a conquest of Cuba as brutal as the Soviet repression of Hungary. As an authoritarian (see the 1933 letter to Loewith and my article “Do Philosophers Counsel Tyrants?.” Constellations, March 2009 here, Strauss was to the right of Weber politically. Given the primacy of inter-imperial rivalry, Strauss and Goldwin thought that affirming states rights would strengthen white American unity and purpose in its rivalry with the Soviet Union. The politics excluded the majority in many Southern states and was profoundly anti-democratic.
In addition, this practical judgment ignored the role of blacks, central to the American army – compelled to be disproportionally on the front lines - in Vietnam. He was dramatically wrong even as an imperialist. As Mary Dudziak, a professor of law, has emphasized in Cold War Civil Rights the Soviet Union invoked the segregation and racism in the United States to point out the regime’s decadence to the new nations of Africa and Asia. Ironically, the fight against racism by the NAACP went hand in hand with anti-communist or more aptly anti-radical ideology (differing from the plethora of reasonable objections to Soviet tyranny, this ideology interprets union or civil rights movements as stirred up among otherwise contented folk by “outside agitators” or foreigners speaking a distant language or rhetoric). Dudziak has creatively studied the paradoxical connection between McCarthyism – for instance, the application of loyalty oaths for public school teachers upheld by the Supreme Court [i]– and desegregation. But in fact, Brown v. Board and desegregation would make America stronger versus the Soviet Union or, in military terms, in waging aggression in Vietnam. Thus, anti-communist blacklisting and McCarthyism proceeded apace, often with the license of the courts, at the very time that the Supreme Court made its most famous, and anti-racist ruling.
On Dec 24, 1960, however, Strauss responded to Goldwin with an additional emphasis – here a more standard segregationist one against centralism or judicial overreaching or for state’s rights - and a desire, once again, to oppose social science (the “SS”):
“I have read the four articles and can hardly say more than that you ought to be congratulated on the good judgment you have shown in selecting the four writers. It is not your fault that the States’ Rights position is presented in only one paper but in the future it might be wise to think well in advance of a possible substitute for a senator. The advantage of Kilpatrick’s paper is that its main argument (local diversity) is not met in any of the three other papers, and so there is room for discussion. All papers are well and interestingly written. Jaffa’s statement is especially brilliant. The only objection I have is to the word ‘freedom’ at the end of the paragraph on page 14; this is surely too much to hope for…Grodzins’ paper is clear, very well written and lucidly argued; but it does not go into the political reasons of the anti-centralists (especially the desegregation issue and the whole question of whether these kinds of matters can legitimately be settled by the Supreme Court). It makes very much sense to me that Grodzins speaks on page 14, line 3 of ‘the most important services” but this qualification raises a well known ‘methodological’ difficulty which might be brought out on a proper occasion in order to bring in a plug for the anti-SS.”
Whether Strauss himself agrees fully with the state’s rights argument – as a political scientist, Grodzins is sometimes a foil for his positions - is less clear than with Goldwin’s remark about national unity. Strauss was an admirer of a philosopher-tyrant who rules wisely but without laws. Churchill’s wartime “executive power” is a near, "statesmanlike" approximation. More centralized than this, there is not in politics. But one can be for executive or commander in chief power and still invoke anti-centralism or state’s rights to oppose judicial decisions that sustain the Bill of Rights. This is a common reactionary thought – one aims to produce tyranny and grind ordinary people down, to fight democracy. Where centralized means do it, tyranny; where local tyrannies prevail, “state’s rights.” Segregation has been wrongly or contingently connected to conservatives (since one may easily defend habeas corpus and the rights of each person, whereas segregation is brutal rule of others, denying habeas corpus in the most murderous ways). In contrast, the purpose of a Court system is to uphold the equal liberties of each individual, particularly when under public attack. This is the point of John Rawls’ first principle of justice, and a broad array of modern democratic theories; it is Rousseau’s distinction between a general will and a will of all. Strauss’s position is, fundamentally, anti-democratic.
Goldwin also reports on the reception of Strauss’s students, Jaffa, Cropsey and Diamond at the conference. On February 7, 1961, he speaks of them – as did Strauss - as “boys” to mirror their political and philosophical accomplishment of Strauss’s aims (“my business”). The most revealing line about the political purposes of the Public Affairs Conference center in this letter is “Seated in the midst of the famous and powerful.” The Center had one aim: to influence the famous and powerful in a particular political (“philosophical”) direction: to be the reasonable man, as in Plato’s Laws who advises the Cretan legislator. Plato does not refer to his school or to the young whom Socrates spoke to (again, Socrates seems to me a radical democrat, different from Plato) as “boys” though Goldwin and Strauss seem to have this connotation (those who revered Socrates and were baffled by him often differed from him; admirably Strauss tolerated differences among his students, for instance, George Anastaplo who opposed the Vietnam war, and worked politically only with certain students, academic or policy-oriented; still, his closest student, Mr. Cropsey enunciated the basic character of the sect the first time he met Michael Goldfield who came to Chicago as a graduate of Williams and had studied with one of Strauss’s best students – “I cannot believe that a student of political philosophy opposes the Vietnam war.” Goldwin also conveys in words (a philosophical eros) the ancient Athenian sense – an old man and the beautiful young – of homoeroticism:
“I will add only that you would have been very proud of your ‘boys.’ Seated in the midst of the famous and the powerful, they conducted themselves admirably and displayed powers of the mind which earned the attention and respect of all. Mr. Grodzins commented especially to me and to others, on the brilliance of some of Mr. Cropsey’s formulations in the discussion. Mr. Diamond and Mr. Jaffa were the other most luminous ‘stars.’”
Strauss aimed to nurture racism, but did not attend the conference. It is worth emphasizing again: for an elite or in philosophy, Strauss was no racist. What would have been most helpful in politics, particularly in Israel, would have been to support Israel settling in the Middle East not as a Western, dominating power, but as one among others. Sadly, Strauss did not make that translation from philosophy to politics. Strauss also once likened the situation of blacks and Jews in a talk on “Why We Remain Jews.” But he overrode this decent opinion to move racist American politics to the right, to harm blacks.
James Kilpatrick’s speech at the Public Affairs Conference is reprinted in Goldwin’s edited collection A Nation of States.[ii] The title advances the state’s rights message of several important pieces (a late addition by Walter Berns, another of Strauss's close students, however, points out the limits of the tenth amendment to the Constitution). To a political but also a Straussian audience, Kilpatrick suddenly becomes a fan of political philosophy, in particular Aristotle and Tocqueville, speaking as it were a la Straussian (he did not employ such allusions as an editor of a Richmond newspaper or in his books, The Southern Case for Segregation and The Southern States. Grandiloquently attacking judicial “centralizers” i.e. an authority or executive alleged to be dictatorial, Kilpatrick notes for his own purposes the advice of the tyrant Periander to the tyrant Thrasybulus in book 3 of Aristotle’s Politics:
“It was to this sort of immoderate greatness that Gibbon attributed the decline of Rome. It is to this sort of faceless nationalizing, to these idiot yells for equality, that our own Republic may yet succumb. Long ago a petty despot, troubled by insurrection in his realm, sent an envoy to Periander for advice. The Ambracian tyrant did not reply directly. He took the envoy to a corn field, and with a sharp blade lopped off the tallest ears until all the stalks were standing level. The despot’s solution, he meant to say, lay in chopping down the strong to equality, with the weak, for when all men are equal none can excel.”
Kilpatrick uses the murderous counsel of the tyrant Periander to inspire white Mississippians:
“The hard counsel of Periander is lost upon some of the more naïve envoys of today’s zealous centralizers, but we may be sure it is not wasted on their masters. Their god is the brutal bulldozer, squat as a pagan idol, whose function is to bring down the mountains and to fill up the valleys. They fear excellence as they abhor ineptitude. The diversity of the States offends their pretty sense of order, and from the comfortable living rooms of Scarsdale they weep tears for Mississippi.”
Tyranny is only worrisome for Kilpatrick, however, if it works toward the equality of the rule of law; paradoxically, his example makes one think of Southern mobs, egged on by the police and the Democrats (they have now been reincarnated as some Southern Republicans) who hung innocents to preserve “their superiority.” His sarcasm avoids the horror at racism which gripped many in the North. Hundreds of white students, some perhaps from Scarsdale, would go South in 1964 to register votes. Some would be murdered…
Kilpatrick adds more modestly and in the abstract, say about the Northern states, rightly:
“The Plan of our Fathers and it was a good plan, was simply to assure people of the best of both worlds – a central government strong enough to act boldly and powerfully in the preservation of national security and in the promotion of truly national interests, yet not so strong that it would swallow up the administration of those local and domestic responsibilities which the people wanted kept close at hand.
Tocqueville put it simply. The federal system was created, he observed, ‘with the intention of combining the different advantages which result from the magnitude and the littleness of nations…”
The Straussians and others sat through this talk about the horrible leveling central government – the evil Court and Kennedy – with its lack of mention of what the issue was. Lynching – Kilpatrick is silent. Preserving shacks for schools – Kilpatrick doesn’t mention it. No admission of blacks to the main colleges or law schools – Kilpatick says nothing. Failure of the mortally injured to get care at local hospitals – Kilpatrick is silent. Beatings of teenagers white and black who demonstrate for civil rights and the occasional murder – Kilpatrick doesn’t know about that.
One wonders how even the Straussians and public officials sat through this performance. But one must remember that in a racist society, as in Nazi Germany, such performances are the norms for governments, editors, and of course academics. It is perhaps unsurprising that Strauss organized this conference but did not manage to attend (Strauss also refrained as a foreigner from direct involvement; he feared that American bigotry, enshrined in McCarthyism, could also focus on him). Walter Murphy, the conservative specialist in law and co-author with Struass’s colleague and friend C. Herman Pritchett, has a Straussian review in the Yale Law Review for 1958, based on Persecution and the Art of Writing, of one of Kilpatrick’s books. Murphy believes that Kilpatrick is an esoteric writer, trying to hint to the cognoscenti, that he is really against segregation. A decent man, Murphy could not take in what Kilpatrick was for. No whiff of esotericism – except perhaps that Kilpatrick doesn’t engage in Southern politician-like racism for the audience at Chicago – arises from his talk. Though he does not mention segregation, however, the Periander example is chilling enough. As is clear in the Strauss-Goldwin correspondance, however, no thought about an alleged Kilpatrick’s hidden opposition to segregation crossed their minds.
Turning to the "anti-SS" theme of Strauss’s exchanges with Goldwin, Strauss refers to Kenneth and Mamie Phipps Clark’s “doll studies” cited in footnote 11 of Brown v Board. The Clarks – I think Mamie did the initial work but Kenneth famously wrote and testified about the findings – purchased brown and white dolls at a store. They gave them to black children, divided by status into groups according to darkness of skin (an interesting point since among the oppressed, such distinctions are common: “German Jews” like Strauss and Loewith looked down on, as Loewith implies in his response to Strauss’s 1933 letter, Eastern or Sephardic jews) in selected schools in the segregated South and in the North. In answer to a series of questions leading to which doll would you rather play with and which is nicer or prettier, the children from the South chose more often to play with the white doll, not with the black one. The Clarks rightly took this as a sign of lack of self-respect on the part of the black children, already absorbing what Martin Luther King would eloquently call “little clouds of inferiority” when his 6 year old daughter learned that she could not go to the Funland amusement park, advertised on television, because of the color of her skin (see “Letter from the Birmingham jail”). Kenneth Clark was the first black psychologist; Mamie Clark his student and the second black Ph.D. This was initially her thesis research. With great professional care as social scientists, the Clarks state their qualitative results which, in allowing the children to speak, are as striking and painful as King’s towering speech:
“Rationalization of the rejection of the brown doll was found among both northern and southern children…A northern medium six-year-old justified his rejection of the brown doll by stating that ‘he looks bad ‘cause he hasn’t got a eyelash.’ A seven-year-old medium northern child justified his choice of the white doll as the doll with a ‘nice color’ because ‘his feet, hands, ears, elbows, knees and hair are clean.’
A northern five-year-old dark child felt compelled to explain his identification with the brown doll by making the following unsolicited statement: ‘I burned my face and made it spoil.’ A seven-year-old northern light child went to great pains to explain that he is actually white but ‘I look brown because I got a suntan in the summer.’”[iii]
Strauss’s argument against value-free social science was in the abstract the best argument he ever gave (I cite it favorably in Democratic Individuality, a long book on how a limited moral objectivity is the basis for any decent reflection on social life, for instance, that slavery and segregation are bad for human beings, which one can give almost obvious arguments for and are sound or true judgments, if any judgments of social thinking or social “science” are. But Strauss’s criticism of the social science of Brown v. Board is wrong in two ways. First, the Clarks made their study and spoke of it as anti-racists. Despite the social science template which their articles mirror, they never thought their findings were neutral. They were right. So Strauss’s critique of “SS” does not apply to their article. Strauss had, however, a political animus toward their findings. He affirmed Kilpatrick and not the Clarks. But their finding was right and Kilpatrck – too cowardly to mention the facts that his version of “state’s rights” licensed, was wrong (monstrous might be a better word at least in terms of consequences). In this case, Strauss was mistaken both about his leading argument which did not apply to the Clarks’ articles and, more importantly, about the substance. The kindest thing one can say on Strauss’s behalf is that there is no evidence that he read the Clarks’ article or had the foggiest idea of what they said. Instead, he displayed a knee-jerk antipathy toward social science – “SS” – and its use in a political context by the Supreme Court. But his animus, in organizing for segregation is intensely political.
Some reviewers, including a Dartmouth political scientist Herbert Garfinkel, a Columbia law review article, and even some of the NAACP lawyers looked down on the Clarks’ studies or thought them “flimsy.” In retrospect, however, the Clarks’ articles go down as the most influential policy studies ever done by a social scientist, as well as the most straightforward and interesting, and of course – it must particularly be said of the psychology of “IQ testing” which has produced endless justifications of eugenics and public crimes down to Charles Murray and Richard Herrnstein’s The Bell Curve – decent. The idea was not complicated, but given the scientism characteristic of American life – an ideology about science, not a scientific argument or fact – the Supreme Court would take it up. The Warren court had just come about; at Chief Justice Vinson’s death in 1953, the vote would have been 5 to 4 in favor of Brown. But the new court managed the stunning and decent margin of 9 to 0. They needed science to stand for a n honorable cause, anti-Nazism (segregation and eugenics were the American varieties) and the equality of the rule of law.
Turning the coin to the present once again, in the Sotomayor hearings this week, Senator Jeff Sessions, a racist from Alabama who was denied a judgeship by the Senate for telling a black colleague he must watch himself not to offend whites and calling the NAACP a foreign organization, asked vehement questions about Sotomayor’s impartiality. She answered him calmly. A white man’s impartiality is not in question. The impartiality especially of the important white men who asked her questions – Democrat and Republican – is not in question. No editorials mentioned it. No one said this view of impartiality is the racism, even in the Obama era, of the status quo. This vision of impartiality once prized segregation and the Klan. (comically, Sessions became upset with the Klan because some Klansmen smoked pot; he did not disagree with the organization’s principles). The racism of the South was broken by the sacrifices of Andrew Goodman, James Cheney and Michael Schwerner one summer night in blossoming, the air heavy with scent Philadelphia, Misssissippi, and by the efforts for civil rights of millions of ordinary people. That movement mainly from below – though inspiring and inspired by Brown v. Board of Education and Lyndon Johnson’s speeches and actions in favor of the Civil Rights Bills - stood for democracy and the equality of the rule of law. Law is always, in embryo democratic law, one that does not differentiate between persons, does not single out groups for special oppression.
The nomination of Sonia Sotomayor and her courage and the fact that her nomination will almost certainly go through is a great thing for America. Sotomayor is a moderate like the so-called liberal justices on the Supreme Court. Most of the other "liberals" have been appointed by Republicans or by Clinton, fearing outcry, and shading the politics of acceptable nominees to the center. 4 members of the Court are reactionaries in the vein of Leo Strauss. Clarence Thomas had Straussians trained at Claremont like John Marini and Ken Masugi as assistants at the Equal Employment Opportunity Commission, helping to subvert an institution to support equality into its opposite; the others just breathe the air of emergency and authoritarianism. In a state of emergency, they know that Lincoln suspended habeas corpus – though always with his eye on the restoration of law – and Roosevelt jailed Japanese-Americans in concentration camps. The origins of the reactionary animus to the civil rights act, enshrined by Chief Justice Roberts and Samuel Alito in memos to abolish it in the Reagan administration, echo the grandiloquent words of Kilpatrick and the hatred of the “commie” Warren Court in the words of Georgia governor Herman Talmadge. The four seek to weaken the voting rights act, to enhance the “free speech” of corporations – corporations with big money are “individuals”; the poor and the homeless, lacking money, count, as individuals in the flesh, for less. To vary Anatole France, the the megacorporations like AIG or Goldman Sachs, (perhaps one should say Geithner, Bush and in this case, even Obama) dressed up as “individuals” have the same right to sleep under a bridge as a homeless person.
The hope of the law in the United States is that judges will continue to stand up (as they did in the Boumidienne case by a 5 to 4 margin) for habeas corpus, the right of each prisoner to a day in court and not to be tortured. Some of the hope of democracy rests there but bridling the power of corporations in American politics will take a resurgence of democracy beyond the rule of current law.
Obama who appointed Sotomayor, has stopped (most) of the torture and seeks to close Guantanamo. Yet he has also, in difficult circumstances, endorsed the Bush adminisration’s corrupt state secrets doctrine, floats indefinite detention, extends the war in Afghanistan and the murder by CIA drones, coordinated from Langley, West Virginia, of civilians in Pakistan. This illegal and immoral use of collective punishment is tragically also Obama’s; though he tries to be careful about it, such a policy threatens to produce a terrible response in Pakistan. Still like Lincoln in whose spirit he seeks to walk, Obama, unlike Leo Strauss, has his eye on the rule of law. May Sonia Sotomayor help all of us to preserve it.
[i] For a New York law, see the 1952 Adler v. Board of Education. For a list, see Dudziak, “Desegregation,” p. 177, n. 3.
[ii] New York: Houghton-Mifflin, 1976.
[iii] Kenneth B. Clark and Mamie P. Clark, “Racial Identification and Preference in Negro Children” (written 1941, first published 1947) in Jonathan Scott Holloway and Ben Keppel eds., Black Scholars on the Line: Race, Social Science and American Thought in the Twentieth Century (South Bend, IN: Notre Dame, 1997), pp. 427-28.