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Political Animal

Past Is Prologue

By Brian Morton | Posted 7/15/2009

So we're living in a "post-racial society." Funny, but it doesn't feel like it.

As much as some would like to believe it, the election of an African-American president doesn't magically usher us into a world where we are all judged by the content of our character and not the color of our skin (the phrase often pulled out of context from Martin Luther King's "I Have a Dream" speech). And the convergence of the 100th anniversary of the NAACP and the confirmation hearings for the first Hispanic-American Supreme Court nominee seems to point out that the more things change, the more they look the same, only wearing different masks. Once again, it's a fight between change and the status quo.

As always, the front lines of the battle involve the terms and language used to fight it. I'm reminded of how the people who argue against the right of marriage for homosexuals claim that gays and lesbians want "special" rights as if the right to be treated the same way by the government and courts of law as any heterosexual couple is somehow "different" or "special." The right to be admitted as family during hospital emergencies, the right of privileged conversations when summoned to testify, the rights bequeathed to "next of kin" upon death these aren't "special" rights when extended to the GLBT members of society. They are rights, period.

When it comes to the ongoing and ever-changing battle of civil rights in America, be it for women's suffrage, equality for blacks, or marriage rights for gays, conservatives in the Senate and on the court (and increasingly, in the new partisan media), have been operating as if, instead of the popular metaphor of a pendulum swinging back and forth, judicial thinking is a gear operated with a ratchet. In the years following the Warren Court, which expanded the rights guaranteed but not allowed to millions of Americans by the Declaration of Independence and the Constitution, the rightward turn of the court following the elevation of William Rehnquist to chief justice was virtually unstoppable.

With the ascension of John Roberts to lead the court, conservatives have been intent on hollowing out the rights granted under previous court decisions the Fourth Amendment guarantees against search and seizure have been constrained, the Miranda rights have been gutted, and the rights of women after Roe vs. Wade was decided have been shaved down each year, bit by bit. Even Justice Antonin Scalia has been impatient, arguing that they should just overturn precedents wholesale, rather than go at them piecemeal.

So the gear only turns to the right, and when it appears that when the gear begins to turn to the left, the whole conservative apparatus court, Senate, and media clicks into place like that ratchet, attempting to stop the evening out of history.

A hundred years ago, the NAACP was formed with Jim Crow rampant, President Woodrow Wilson on the cusp of enshrining official segregation in the federal government, and at the height of the era of lynching. Thankfully, those days are long gone. But even though we have elected a black president, some things don't change, try as we might.

Just as Thurgood Marshall, at his Supreme Court confirmation hearings in 1967, was asked if he was "prejudiced against the white people of the South" (funny how nobody thought to ask if the opposite were true), now conservatives are forming the lines of attack to ask if nominee Sonia Sotomayor is prejudiced against the white people of today.

Two and a half weeks ago, a pool in the suburbs of Philadelphia revoked the contract of a day camp consisting of predominantly black and Hispanic kids, and the pool's president cluelessly told a local TV station that "there is a lot of concern that a lot of kids would change the complexion . . . the atmosphere of the club." And here in Baltimore, the mortgage lender Wells Fargo is charged with steering black families into subprime loans before the collapse of the housing market, with firm employees using terms like "mud people" to describe their victims. Some things still don't change.

Putting Sonia Sotomayor on the court will not immediately change the direction of the gears of justice far from it. Societal inertia is strong, and change is always slow in coming. There has been almost 30 years' worth of effort behind the mentality of "This is enough and we're going no further," the modern equivalent of William F. Buckley's phrase, "standing athwart history, yelling 'Stop!'"

Now is a good time to take a look at history and remember where we've been, and what and who we ought to be. And how much it will take to lift the ratchet and let the gears move freely.

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