Diatribes of Jay: A Time of Testing

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At cusp, choice is. With choice, spirit grows.

Stranger in a Strange Land

Labor Day is the last big American summer holiday. After it, the weather starts to turn cold. Americans return from their summer cabins and their European jaunts to darker morning skies and hard work. The cold reality of life and its struggle to survive reasserts itself. That’s why the Crash of 1929, which brought on the Great Depression, and the Crash of 2008 both came in the fall, in October and September, respectively.

But this post-Labor-Day period is different. It threatens to be infinitely harder and tougher. We Americans are now on a cusp that could fix the fate of our entire American experiment.

You could see it in faces of the senators on both sides of the Kavanaugh hearings. You could see it in the demeanor of Judge Kavanaugh himself. Gone or fleeting were the false smiles that pols can smear on their mouths as ladies put on lipstick. Grim and determined were the expressions on both sides. Gone were the false professions of amity—my “good friend,” my “esteemed colleague”—in a bitterly divided Senate.

None of this was accidental, for political Armageddon is upon us. Every one of us must decide which side we’re on. We must decide what is right and what is wrong.

At the end of the day, we are all Americans. As such, we don’t all take our guidance from the Bible, the Koran, the tracts of Confucius, or the Torah. Rather, we look to the most fundamental document that made us Americans, our Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights; that among these are Life, Liberty and the Pursuit of Happiness.”

When Thomas Jefferson wrote those words, he kept slaves. His words were self-evidently aspirational. They were hardly fact.

But we fought our bloodiest war ever, among ourselves, to bring his words closer to reality. We abolished slavery and made our former slaves equal citizens. Then, a century later, we abolished the informal slavery under Jim Crow with two federal statutes: the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Since then we have struggled mightily to bring Jefferson’s words still closer to reality. We have made some progress: we elected our first African-American president.

But then came the backlash and Donald Trump. His administration and his demagoguery rest almost entirely on the notion that some are more equal than others. Whatever their merits, his thinking runs, docile and obedient whites are more equal than African-Americans, Hispanic immigrants, Muslims, dissidents and refugees, whatever their individual merits.

Trump has tried to normalize this national heresy with travel bans, support for extreme and militarized policing, a disinclination to investigate or condemn murders by police, incitement to violence at his rallies, and (most recently) an attempt to deprive Hispanic-Americans born in the US of their passports. His mouth has become a Pandora’s box from which expressions of bigotry, misogyny and homophobia emerge daily in numbers, like bats from Carlsbad Caverns at dusk.

Now he wants the Senate to confirm his nominee as a swing Justice on our Supreme Court. This nominee never met an employer, corporation, executive, bank, or high military officer he didn’t favor. He never met an ordinary worker, underling, victim of discrimination or harassment, consumer, or common soldier that he did favor.

Make no mistake about it. Bret Kavanaugh is and will be an instrument of the Oligarchy and authoritarian America. That is why he was nominated, and that was his consistent bent as a political actor, long before he became a judge.

Don’t let his boyish charm and love of baseball fool you. Of course he’s bright. He went to Yale University and Yale Law School—the most selective in our nation. His life is a long and mostly boring tale of continuous upper-class white privilege. Its apparent result is a conscious or unconscious decision to serve life-long as a lackey to the rich and powerful.

Kavanaugh’s intelligence is not in question; nor is his training. His Americanism is.

What Kavanaugh has done as a judge is not what America means. Nor is it what history requires. His cramped obeisance to power is not why refugees still stream to our shores from every corner of the globe. They have that much in Brazil, where they just kept jailed the most popular (and coincidentally the most progressive) candidate for president. We Americans succeed and excel as a nation because so many of Emma Lazarus’ “poor, tired, huddled masses” believe in Jefferson’s words, even though those words have made only half the trek from aspiration to reality.

The “swing” justice whom the right wing wants Kavanaugh to replace was Justice Anothony Kennedy. Over twenty years ago, he came to speak at the University of Hawaii’s William S. Richardson School of Law, where I was teaching. He chose the subject of the “flag burning case,” Texas v. Johnson, in which he himself had concurred with the Court’s then most liberal justice in a bare 5-4 majority. (A young Justice Scalia also anomalously concurred.)

Justice Kennedy began his talk with us by noting the times in which the Court had ruled. We had been at war, the Vietnam War. The “Greatest Generation,” which had fought so valiantly and selflessly in World War II, had been in the prime of its life.

Kennedy was acutely aware how much the men who had fought, suffered and watched their comrades die under our flag felt about its being deliberately burned in protest. But he also recognized our constitutional rights as vital to our freedom. Popular speech, he said, does not require legal protection. Only unpopular speech does. And burning the flag is about as unpopular as symbolic speech can get, especially to those who fought under it.

Nevertheless, free speech under our First Amendment is our most vital national value. Every generation of our people, Kennedy said, must learn its importance anew by being forced to tolerate speech they despise. He was glad, he said, to have had the opportunity, in the flag-burning case, to teach that lesson to our Vietnam-era generation. His vote helped strike down anti-flag-desecration statues in 48 of our 50 states.

How could anyone possibly compare burning an American flag to Colin Kaepernick’s “taking a knee,” silently and respectfully, during our national anthem?

Were any level of government to try to silence Kaepernick and his colleagues, Justice Kennedy would undoubtedly have upheld their right to symbolic speech. But how would Judge Kavanaugh rule, if the case came before him, when the complaint is not about government action, but about an alleged conspiracy of powerful businessman, NFL team owners, in violation of our antitrust laws? Having favored the “rights” of the powerful over those of the powerless in almost every controversial case he has decided, Kavanaugh would likely find some excuse for our corporate oligarchy to deny Kaepernick, by non-governmental means, the freedom to protest symbolically that our Constitution guarantees everyone as against government.

What a marvelous, subtle, sophisticated and Machiavellian way to suppress legitimate protest without violating the letter of our Bill of Rights!

That may be why Nike, a high-end tennis-shoe maker, impliedly lauded Kaepernick in an ad campaign just out this week. Maybe the shoe maker really made a business decision. Maybe Nike knows that its customers, young and diverse as they are, mostly see Kaepernick as the American hero that he is—a brawny male version of Rosa Parks. Maybe Nike’s marketing managers see its customers as nearer than most of us to primary school, where they first learn the letter and the importance of our American human rights, including free speech.

But I doubt it. I think Nike’s managers just decided to stand up for what is right and beautiful. Likely they hoped that business success, as it often does, would follow just from doing right. If they had been preoccupied with marketing, they probably would have focused on Nike’s considerable foreign market for tennis shoes. Would that robust foreign market survive when America no longer stands for peaceful, respectful, even elegant protest, but only for raw power? Would Nike’s marketing slogan become “dictators and demagogues wear our shoes. You can, too”?

There is no escape from it. In this time of trouble and division, everyone must take a stand. The managers at Nike have, come what may. Now it’s up the rest of us, including the few Republicans who still have a say and a spine.

If Kavanaugh is confirmed, the right-wing victory will be only temporary. Unless we forfeit our democracy entirely, sooner or later demographics will bring us a Democratic Congress and a Democratic president. Having watched the brazenness with which Mitch McConnell stole a Supreme-Court seat and rushed through Kavanaugh’s confirmation without giving senators time to read his voluminous output, they will have no compunctions about propriety in the Senate. They will simply expand the Court to eleven or twelve justices—a feat well within Congress’ constitutional power—and make the Court their own.

This does not mean that anyone should be equanimous about Kavanaugh’s confirmation. If the right wing can break and annul Senate rules and traditions for the sake of expediency, then so can the left. Then little that is sacred will remain in our American experiment. Soon they may come for our Bill of Rights, after allowing corporations to violate its sprit with impunity.

So the best result by far would be to reject Kavanaugh. At least we ought to postpone his confirmation to a time when the president who appointed him—after the Senate had stolen yet another seat for the right—is no longer under investigation for treason and other felonies.

Whatever happens to Kavanaugh, this year’s political Armageddon will not end with his hearings. A second phase will come with the midterms. In this phase, ordinary citizens, not Senators, will be the arbiters. If you do not vote, you will have no right to cry or complain when they come to take you, your relatives or your friends away to internment camps.

Everyone feels it. It’s in the air. The times are grim. But according to preliminary news reports of Bob Woodward’s new book, Fear, our institutions so far have stood the test. White House officials reportedly have contained Trump’s senility, narcissism, and mental instability, at times by taking papers from his desk, at other times simply by ignoring his orders.

But how long can these conditions last? How long before Trump uses his undoubted presidential power to fire, just as he lustily declared “You’re fired!” in his TV reality show? How long before generals Kelly and Mattis, Secretary Pompeo, and even the milder bigot Sessions (who at least is willing to stand up for basic principles of prosecutorial independence) are all gone? How long before all these strained but honest staff are replaced by toadies and sycophants? How long, in short, before an American equivalent of the Reichstag fire provides a pretext for postponing or canceling the 2020 elections and declaring Trump president for life? What would Kavanaugh, with his well-documented genuflection to executive power, do then?

Yes, our democracy will have another shot at longer life in 2020. But by then it may be too late. This fall is crunch time, and everybody knows it. It may not be the very last time, but it surely is the best time, to preserve what is left of our democracy. In so doing we might also close the Pandora’s box of lying Tweets that daily goad us to fight each other—neighbor against neighbor—like rats in a too-small cage. Jesus Christ would like that.

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Diatribes of Jay

05 September 2018

A Time of Testing

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