Friday, November 11, 2005


By William Fisher

Despite the enormous challenges facing the United States – education, health care, poverty, church and state, race relations, terrorism, Iraq, prisoner abuse, budget deficits, government corruption and inefficiency, to name but a few – a growing number of authorities are finding it revealing that the nomination of Judge Sam Alito to the Supreme Court appears to have come down to a single issue: abortion.

These authorities say the debate over this issue has become not only a thinly-veiled ‘litmus test’ for membership on the High Court, but a barometer of how sharply divided the U.S. is on social issues and the political clout the religious right has achieved over the last two decades.

Since his nomination by President George W. Bush last month, Alito has been engaged in ‘courtesy visits’ with members of the Senate Judiciary Committee, which will conduct hearings on his confirmation beginning in early January.

In these meetings, the word abortion has been studiously avoided by most, with the issue shrouded in such euphemisms as the right to privacy. But the question really being asked by senators on both the right and the left is: Can Judge Alito be counted on to vote to overturn the 1973 Roe versus Wade Supreme Court decision that established a women’s right to have an abortion?

The centrality of this issue was seen a month earlier in the withdrawal of Pres. Bush’s first Supreme Court nominee, White House Counsel Harriett Miers. Ms. Miers was the subject of an aggressive revolt by religious right-wingers – Mr. Bush’s base – who raised doubts that Ms. Miers commitment to reversing Roe v. Wade was strong enough to gain their support.

The basis of the intense interest in Alito’s nomination is that, if confirmed by the Senate, he would replace the retiring Justice Sandra Day O’Connor, a “pragmatic conservative” who has often represented the swing vote in 5-4 court decisions.

Today, when conservative Republican senators emerge from their private meetings with Judge Alito, they can barely contain their glee. Sen. Sam
Brownback, the conservative Kansas Republican and staunch opponent of abortion rights, said, "This is the type of nominee I've been asking for," adding that he was convinced that Judge Alito was "open to a review of cases." Brownback is one of the senators who led the successful anti-Miers campaign.

Senators in the ideological center have largely shown a cautiously positive attitude on the nomination. Typical is Sen. Joseph I. Lieberman, the centrist Connecticut Democrat who backs a woman's right to abortion. Lieberman said he was encouraged by what he heard from Judge Alito.

Recounting their conversation, Sen. Lieberman said Alito’s view is that
“Roe was precedent on which people, a lot of people relied, that it had been precedent for decades and therefore deserves great respect."

Other Senate Democrats have apparently been at least provisionally satisfied that Alito’s respect for legal precedent and “settled law” and would make him unlikely to reverse Roe.

Waiting in the wings is a phalanx of left- and right-leaning special interest groups, geared up – some say eager -- for a media and lobbying battle to move the public and the Senate to their different viewpoints. Some have already spoken out.

For example, the left-leaning Alliance for Justice opposes Alito’s nomination. The advocacy group says, “Influential segments of the radical right torpedoed the nomination of Harriet Miers because she didn’t have a proven record of being a 'movement’ conservative, dedicated to carrying out their political agenda on the bench. The right is now giddy about the nomination of Samuel Alito – undoubtedly because he has such a record. Judge Alito would fundamentally change the balance of the Supreme Court, tipping it in a direction that could jeopardize our most cherished rights and freedoms,” stated AJ president Nan Aron.

On the religious right, Focus on the Family Action founder and chairman James C. Dobson, said, "Perhaps the most encouraging early indication that Judge Alito will make a great justice is that liberal senators such as Harry Reid and Charles Schumer and leftist pressure groups such as People for the American Way and Planned Parenthood have been lining up all day to scream that the sky is falling. Any nominee who so worries the radical left is worthy of serious consideration.”

But that position is not unanimous among religious groups. For example, the newly-formed progressive organization, The Christian Alliance, told IPS, “It is hard to imagine how someone whose vision of justice concludes that a woman has to get her husband's permission to make a decision about her own reproductive health, or that women in the workforce are not unfavorably affected by pregnancy, can effectively sit as a judge on the nation's highest court.”

Rev. Tim Simpson of the Alliance added, “I cannot see how any of the things that he is currently telling Senators during his ‘moderating makeover’ can be taken seriously.”

Observers say that if Alito has managed to convince the right and at least neutralize the left on where he would like come down on the abortion issue, one side or the other is wrong. “They can’t both be right”, said a prominent constitutional law professor who declined to be named.

One reason for the apparent confusion over Alito’s position is his limited but mixed record on this issue.

The best known of Judge Alito's abortion opinions is his dissent in Planned
Parenthood v. Casey, the case the Supreme Court later used to reaffirm and
modify the Roe holding. In Casey, Judge Alito's court reviewed a number of Pennsylvania abortion restrictions and unanimously upheld all but one -- a provision requiring notification of husbands before married women received an abortion.

The provision provided an exception for women who feared physical abuse, but the court majority said it could still constitute an undue burden to women concerned about psychological or economic coercion, harm to their children, or sharing with other relatives what they intended to keep secret.

Judge Alito dissented, reasoning that married women were a minority of those seeking abortions and married women who didn't tell their husbands were a very small minority of those. He concluded that because only a small percentage of women overall would be affected, the provision did not constitute an undue burden to the right of abortion in general.

In at least one case, Judge Alito voted on the pro-choice side of litigation
that split his court. In 1995 he agreed that Medicaid rules that required funding for certain abortions in cases of rape or incest or when the mother's life was at stake, despite contrary Pennsylvania legal restrictions. A judge committed to stop abortions could easily have found a way to an opposite conclusion.

It is unlikely that Alito’s confirmation hearings will shed much more light on how he will rule on abortion-related cases; he is virtually certain to decline to respond to such questions because the issue may well come before the Supreme Court.

So the senate and the special-interest lobbying groups will have to content themselves with trying to read the tea leaves, with the abortion issue seemingly eclipsing all others.


By William Fisher

Ask any non-American to name three leaders of the civil rights movement of the 1950s and 60s, and chances are they’ll stop after one: Martin Luther King.

But in fact the movement had many leaders.

Malcolm X went from being a street-wise Boston hoodlum to one of America’s most influential black nationalist leaders, advocating black pride, economic self-reliance, and identity politics. He was assassinated in New York City in 1965.

Stokely Carmichael saw nonviolence as a tactic as opposed to a principle, and was critical of civil rights leaders like Martin Luther King, who called for integration of African Americans into the existing institutions of white middle class culture.

Medgar Evers, the first field officer for the National Association for the Advancement of Colored People (NAACP) in Mississippi, was involved in a boycott against white merchants in the city of Jackson and was instrumental in eventually desegregating the University of Mississippi in 1962. Evers was assassinated by white supremacists in 1963.

John Lewis, now a member of the U.S. Congress from Georgia, led the first march across the now-famous bridge in Selma, Alabama, to confront police armed with riot gear, water cannons and dogs. A few days later, he was joined by Rev. King and their actions led to the passage of historic civil rights legislation in 1964 and 1965.

There were many others who played key roles in the civil rights struggle. One of them was Rosa Parks, and despite the recent spate of well-publicized events surrounding her death last month at age 92, non-Americans are unlikely to place her in this pantheon of civil rights leaders. Indeed, millions of Americans are among those to whom Mrs. Parks was unknown.

The mythology is that Rosa Parks was just an ‘ordinary black seamstress’, quiet, soft-spoken and retiring, tired after a day’s work, when she refused to give up her seat to a white man on a racially segregated bus in Montgomery, Alabama, in December, 1955.

But the reality is that Mrs. Parks was an activist long before her arrest on the bus. She had refused to give up her bus seat several times before her well-photographed arrest, and had joined the National Association for the Advancement of Colored People (NAACP) when this simple act alone was potentially life-threatening in the racist atmosphere of America’s deep south in the 1950s.

Parks joined the NAACP at a time when membership could result in murder. She married Ray Parks, a longtime NAACP activist who carried a gun to challenge racial injustice in Alabama.

But December 1, 1955 was not the first time a black person had refused to obey the segregation laws of public transportation. Two black Montgomery women had been arrested earlier that year on the same charge, but Mrs. Parks was jailed. She also was fined $14.

According to Prof. William Jelani Cobb of the traditionally black Spelman College, “During one twelve-month period in the 1940s, the city of Birmingham witnessed some 88 cases of blacks who refused to obey the segregation laws on public transportation. Five months prior to Parks, fifteen year-old Claudette Colvin had refused to give up her seat for a white passenger. She had been ejected and arrested and the local NAACP considered bringing a suit that would challenge segregation on the city's buses, but Colvin was pregnant and unmarried… activists thought she would not be a sympathetic example. Another young black woman, Mary Louise Smith, was arrested shortly after Colvin; but (NAACP leaders) thought her dilapidated home and alcoholic father would be a public relations liability”

Prof. Cobb writes in America Online’s Black Voices, “A combination of factors made (Mrs. Parks’s) refusal a powder-keg moment in civil rights history. Just a year earlier, the Supreme Court had handed down the Brown v. Board of Education decision and the segregationist politicians had responded with the "Southern Manifesto," in which they declared their intent to resist integration at all costs. …And contrary to the popular retellings, her actions that day were not staged -- though they did come at the time when a coalition of activists and local lawyers were planning an assault on the structures of segregation in Montgomery. In the early hours, the local civil rights community found itself scrambling to respond to her arrest and imprisonment.

“Nor was the idea of boycotting segregated buses, which grew from Parks' arrest, unique. The 26 year-old Martin Luther King Jr., and the newly formed Montgomery Improvement Association (MIA), called upon the Rev.T.J. Jemison for advice. Jemison had organized a two-week boycott of the buses in Baton Rouge, Louisiana in 1953. Together they formulated a plan by which people would pay the MIA, (which) would then dispense funds for travel to the drivers in the carpools -- in order to avoid tickets for operating unlicensed taxi cabs.”

Her arrest triggered a 381-day boycott of the bus system organized by a then
little-known Baptist minister, Rev. Martin Luther King, who later earned the Nobel Peace Prize for his work. The boycott eventually led to a landmark Supreme Court decision outlawing racial segregation in all taxpayer-funded public services.

Mrs. Parks’s death last month at age 92 triggered an outpouring of admiration, love and ceremony. She became the first woman to lie in the rotunda of the U.S. Capitol, where her casket was viewed by thousands. Speeches by civil rights leaders, senators and congresspersons hailed her as “the mother of the civil rights movement”. Her memorial services in Washington, D.C. and in her adopted home state, Michigan, attracted tens of thousands of mourners, the singing of Aretha Franklin, and eulogies by former President Bill Clinton, both Michigan senators, the governor of the state, NAACP president Julian Bond, the Rev. Jesse Jackson and many others.

Clinton said, "Let us never forget that in that simple act and a lifetime of grace and dignity, she showed us every single day what it means to be free. She made us see and agree that everyone should be free. God Bless you Rosa Parks."

President Bush said Mrs. Parks' 1955 refusal to give up her seat "was an act of personal courage." Bush described her as "one of the most inspiring women of the 20th century" and said that she would always have a "special place" in American history. In 1996, she received the Presidential Medal of Freedom, awarded to civilians making outstanding contributions to American life. In 1999, she was awarded the Congressional Gold Medal, the nation's highest civilian honor.

Now a number of efforts are being made to carry on Rosa’s legacy and to link it to the anti-Iraq-war peace movement.

The Boston City Council unanimously adopted a resolution supporting Dec. 1 – the 50th anniversary of her arrest – as a nationwide “Day of Absence and Protest Against Poverty, Racism & War”. In New York, a dozen members of the City Council announced the introduction of a resolution declaring December 1 as Rosa Parks Day and called on businesses and schools to close or allow people to attend protest events.

Organizers of the national day have declared, “a relative handful of people who either own, control or profit from the economy must know that we consider the right to live free of war and the right to a job, to be as much of a civil right as the right to sit in the front of the bus. It is time to declare that poor and working people will not sit in the back of the economic bus that only runs to make the rich richer… (This) is the legacy that Rosa Parks has left us”.