An Atrocious Anniversary

You’ve run into The Argument if you’ve been on social media for any length of time.

It usually comes from an erstwhile supporter of Bernie Sanders who now vows to volunteer for Jill Stein. It’s an argument so lacking in logic, so overt in its obnoxiousness, so deficient in its dignity that one wonders how the promoters of this pablum can look at themselves in the mirror with any self-respect.

The Argument goes like this:

“It’s better for progressives if Hillary Clinton loses. She’s such a creature of the Establishment. She’s so corrupt. She’s too hawkish. She’ll sell progressives down the river at the drop of a hat. She genuflects too much to corporate America. Don’t get me wrong; Donald Trump is a bad dude, but he’s an incompetent one, and he’s guaranteed to be a one-term President. In 2020, we can get a real progressive elected President–maybe Elizabeth Warren. She could whip Trump’s ass easily. We can survive four years of Trump. We can’t survive four years of that hack Hillary.”

This vulgar and vile argument deserves a full-throated rebuke, but only two soft words are necessary. Two soft words that should (but probably won’t) remind those who make The Argument of just how much damage a single Republican presidential term can inflict upon this vulnerable country. Two soft words that should render the four-years-of-Trump-won’t-be-so-bad crowd silent.

Clarence Thomas.

It was 25 years ago this month that America watched the contentious confirmation hearings for the thoroughly unqualified man President George H. W. Bush selected to replace Thurgood Marshall on the US Supreme Court. Anti-Clinton progressives who were too young to remember those hearings have something of an excuse for not understanding the abject fear so many Americans had of this right-wing ideologue avoiding accountability for his alleged actions towards former colleague Anita Hill. However, it’s hard to imagine what older anti-Clinton progressives who lived through the Thomas hearings are thinking.

The confirmation of Thomas–the abject failure of the then-Democratic Senate to keep this clown from the Court–was one of the darkest moments in recent American history: in the quarter-century since his confirmation, Thomas has disgraced the Court with a seemingly endless list of absurd votes and opinions. For sheer revulsion, it’s hard to top Thomas’s dissenting opinion in Safford v. Redding (2009), an opinion that has yet to lose its ability to turn one’s stomach.

The New York Times summarized the case as follows:

A strip search of a 13-year-old girl by officials at her middle school violated the Constitution, the Supreme Court ruled Thursday in an 8-to-1 decision.

The student, Savana Redding, had been suspected of bringing prescription-strength ibuprofen to the school, in Safford, Ariz.

Justice David H. Souter, writing for the majority, said a search of Ms. Redding’s backpack and outer garments did not offend the Fourth Amendment’s ban on unreasonable searches. But the pills in question, each no stronger than two Advils, did not justify an “embarrassing, frightening and humiliating search,” Justice Souter wrote.

School officials ordered Ms. Redding, whom another girl had [falsely] accused of giving her drugs, to strip to her bra and underpants and to pull them away from her body, exposing her breasts and pelvic area. No drugs were found.

John Roberts recognized that this strip search was a violation of Redding’s rights. Samuel
Alito recognized that this strip search was a violation of Redding’s rights. Antonin Scalia–Antonin Scalia!–recognized that this strip search was a violation of Redding’s rights.

Not Thomas.

With repugnant rhetoric, he declared that strip-searching a thirteen-year-old girl was perfectly normal:

Unlike the majority, however, I would hold that the search of Savana Redding did not violate the Fourth Amendment . The majority imposes a vague and amorphous standard on school administrators. It also grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge. This deep intrusion into the administration of public schools exemplifies why the Court should return to the common-law doctrine of in loco parentis under which “the judiciary was reluctant to interfere in the routine business of school administration, allowing schools and teachers to set and enforce rules and to maintain order”…

Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment. Such institutional judgments, like those concerning the selection of the best methods for ‘restrain[ing students] from assaulting one another, abusing drugs and alcohol, and committing other crimes….involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country’…

By declaring the search unreasonable in this case, the majority has ‘surrender[ed] control of the American public school system to public school students’ by invalidating school policies that treat all drugs equally and by second-guessing swift disciplinary decisions made by school officials…The Court’s interference in these matters of great concern to teachers, parents, and students illustrates why the most constitutionally sound approach to the question of applying the Fourth Amendment in local public schools would in fact be the complete restoration of the common-law doctrine of in loco parentis.

In other words, the Fourth Amendment doesn’t really apply to minors. (Two years later, in a similarly sickening dissent in Brown v. Entertainment Merchants Association, Thomas suggested that the First Amendment also didn’t really apply to minors. Who knew that high school newspapers didn’t merit First Amendment protection?)

We’ve had to put up with a quarter-century of this nonsense thanks to a Republican president who only served one term. Do the anti-Clinton progressives who keep promoting The Argument ever bother to think about the sort of judicial jerks Donald Trump could appoint to the Supreme Court, even if his mischief was limited to just one term?

By the way, do you remember all the grief Justice Ruth Bader Ginsburg received for stating facts about Trump? Ginsburg deserved respect, not ridicule, for standing up and speaking out–and Thomas, the man who once denounced an alleged “high-tech lynching,” would deserve similar respect if he ever bothered to stand up and speak out against the de facto lynchings, captured via high-tech, of black men who will never have a chance to reach Thomas’s 68 years. Alas, the chances of Thomas speaking on police brutality are about as strong as the chances of Thomas speaking at a SCOTUS hearing again.

One term of a Republican president can be a very dangerous thing. Will anti-Clinton progressives force us to learn this lesson again?

D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.