Questions For A Neo-Confederate Justice?

Questions For A Neo-Confederate Justice?
An Exposé of Legal Darwinism and Neo-Redemptionist Federalism

by Asa Gordon*

For Senators who will follow Justice Clarence Thomas’ lead and establish that the President has kept his word, the reason to reject his nominee is a given. President Bush made a campaign promise to nominate a justice in the tradition of conservative Justices Antonin Scalia and Clarence Thomas. The August 4, 2002 issue of The Washington Post Magazine reports in the article “Supreme Discomfort” that Ken Masugi, one of Thomas’ aides at the EEOC in the ’80s, spent many hours discussing ideas and ideology with Thomas. He recalls one such conversation in which Thomas posed this question:

“Is there some way to be a conservative without being a Confederate?”
{Q} How would you answer Justice Thomas? Why do you suppose Justice Thomas posed this question?

This opening question will lead the nominee into a reveiling public confrontation over the Old South/Confederate inheritance in our contemporary political culture. The nominee’s response will either alienate a major Republican base of  Southern support or expose the historically crass underpinnings of the nominee’s Neo-Confederate judicial philosophy.

There is a line of questions that can establish if any conservative judicial  nominee by Bush embraces a judicial philosophy that is not constrained by “judicial restraint”, but represents an extreme conservative “judicial activism” infused with a socially adverse judicial ideology of 19th century “Legal Darwinism”and Neo-Confederate Redemptionist Federalism. Judicial “restraint” or “activism” are not ideologies, nor do they represent an exclusive conservative or liberal approach to the law. “Originalism”, “judicial restraint”, “judicial activism”,”strict constructionism”, “orthodox jurisprudence”, “textualism”, “fundamentalism”, “minimalism”, and “stare decisis” are all quasi-scientific rationales that a conservative Neo-Confederate Justice will evoke to cloak a judicial philosophy grounded in supremacist ideology.

The problem is that the questions that were posed to the recent Supreme Court nominee John G. Roberts and will be asked of any conservative judicial  nominee by Bush are revealing of inquisitors who are unaware or choose not to confront  this unpleasant reality. The self-righteous  bi-partisan liberal and conservative media pundits rebukes of veteran Civil Rights leaders John Lewis and Wade Henderson for their characterization of the “indisputably qualified conservative” Roberts as a pre Brown v Board of Education Justice as outrageous, make it clear that many Whites of any political persuasion just don’t get it, are totally clueless and in denial. Their paternal rebutes represent a belief in a race so supreme in reason that there is no doubt that fairness resides even where prejudice is assumed to exist. It is a faith that even moves “liberal” Senators Patrick J. Leahy, Herb Kohl, and Russell Feingold to vote on “hope” and garners the endorsement of the “liberal” Washington Post. Is there any wonder that Plessy v. Ferguson’s(1896) ruling “[I]t is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it” remains this nations ageless judgment of racial conflict. Yes media pundits, the Pre-Brown Plessey Justices that made the decision to provide judicial sanction to legal apartheid in America were all “indisputably qualified conservative” justices that just knew they were not racist, that their judgment was not racist, and that the criticism of the blacks of their day was emotional.

Here is a  historical factual generic question that exposes the underlining lies and denial inherent in all of this nation’s Civil Rights Jurisprudence and Supreme Court nominations. The Conservative justices are joined by their academic boosters in the distortion of history and contemporary reality.

{Q} In the years following the Civil War, senators demanded that nominees to the Court hold orthodox views on issues relating to Reconstruction. A Republican attorney, nominated by a Republican President was acknowledged to have been “a man of great ability who earned the respect of the Supreme Court bench and bar”, but was rejected by a Republican Congress that further temporarily depacked the court by eliminating the Supreme Court seat for which he was nominated, because he had recently drafted the President’s message vetoing the Civil Rights Bill that became the basis of the 14th Amendment. He was rejected for raising the same arguments against the passage of the 14th amendment that Conservative opponents and the present president have raised against affirmative action. Who is this attorney? Why should we not follow this congressional precedent by the framers of the 14th Amendment and reject your nomination for the same reasons?

Questions should seek to expose a covert Neo-Confederate Justice. Questions posed to a Conservative Justice should focus on identifying and exposing the historical context of  the purported Conservative judicial ideology. The questions should not seek to determine how the nominee may rule on issues which may come before the high court in the future, but demonstrate how the nominee would have ruled on classic issues that have appeared before the high court in the past, with disastrous consequences for today.  Such questions will establish that the “smoking gun” revelation that should disqualify the nominee resides not in the discovery of unknown position papers but in the examination and public exposure of  the Conservative judicial philosophy of  “Originalism” and “Strict Constructionism”. A truthful response will demonstrate that history has already judged this judicial philosophy represents a judicial strand of reasoning that  abandons the protection of a citizen’s civil rights in the name of a supremacist federalism. An untruthful response will denigrate and alienate a large segment of the Republican base support.  The problem lies in the fact that such questions will not only prove to be painful for the nominee, but painful to the American public in exposing the myth and fraud surrounding the debate over Supreme Court nominations and a sordid history of the high court itself. In either case, the public, and maybe even the punditocracy will have received an education.


{Q} Are you in agreement with Supreme Court Justices Antonin Scalia and Clarence Thomas who divine attributes of a definitive “original intent” to the constitutional framers? Is it your view that “Judicial Restraint” requires that the constitutional framers “original intent” must provide the determinative standard by which all constitutional interpretation of legal precedents must be judged and condemn all departures as impermissible manifestations of “judicial activism”?

{Q} The original intent of the framers of the Constitution of 1787 restricted the franchise to white males with property. The original intent of the framers of the post Civil War Reconstruction 13th, 14th & 15th Amendments was to expand the franchise. Which of these “original intents” best represents our American values of democracy today?


{Q} The American Heritage History of “THE LAW IN AMERICA” by Bernard Schwartz (Editor, Alvin M. Josephy, Jr., 1974), declares, “[T]he Fourteenth Amendment was converted into a Magna Carta for business”. Do you agree or disagree? If not why not?

Questions should be posed to establish if  a  Conservative Judicial nominee is a throwback to the 19th century Legal Darwinists. The Legal Darwinists believed that the judiciary should limit itself to the role of arbiters (referees) to insure that the nation’s superior beings, especially its highest attainment the “corporate person”, should not be unduly constrained by the collective will of the inferior masses in the form of representative government. The government must be constrained from intervening in social contests determining the “survivor of the fittest” or providing unnatural support in sustaining inferior social classes that undermine the progressive evolution of the state. The Legal Darwinists seek to codify the “Social Darwinism” of the Victorian biologist Herbert Spencer, who declared, “I am simply carrying out the views of Mr. Darwin in their application to the human race.” The Legal Darwinist jurisprudence is guided by the “invisible hand” of Social Darwinism.  The Legal Darwinists embrace William Graham Summer’s observation that “The millionaires are a product of natural selection.” The Legal Darwinist adopts a legal philosophy which would allow the nation’s weak and unfit to fail and expire, and holds that this not only represents good social policy but is morally right. Legal Darwinists reject Justice Holmes protestation in his Lochner v. New York dissent that “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” At the dawn of the Civil Rights era, Justice William O. Douglas declared, “For years, the Court struck down social legislation when a particular law did not fit the notions of a majority of Justices as to legislation appropriate for a free enterprise system.” Is this the kind of conservative judicial activism the nominee will continue to champion as a Supreme Court Justice?

{Q} Is it your view that the the framers of the Fourteenth Amendment intended to include corporations as “persons?”

{Q} Justice Roberts, in a memo sent to the Attorney General on Dec. 11, 1981,  summarized a lecture by former Solicitor General Erwin N. Griswold at Washington and Lee University. In that memo he declared that Griswold’s lecture “devotes a section to the so-called ‘right to privacy,’ arguing as we have that such an amorphous right is not to be found in the Constitution. He specifically criticizes Roe v. Wade.” Would you characterize the so-called ‘corporate person’ as an amorphous right not found in the Constitution?

{Q} The constitutional protection of corporations by the courts required the judicial broadening of due process to include substantive, as well as procedural, limitations on governmental power. Is this an exercise of conservative or liberal judicial activism?

{Q} Legal history has judged that the preponderance of “activist” Supreme Court rulings on “due process clause” protections under the Fourteenth Amendment has overwhelmingly favored the “corporate person”, the creation of man, over the “human person”, the creation of God. The Supreme Court recently ruled to affirm property seizures from human persons through forced sales for private development by corporate persons. (1) Is this an example of Conservative “judicial restraint” or Liberal “judicial activism”?

{Q} Do you believe the “corporate person,” the creation of man, has the right to patent the creations of God for the “human person”?

{Q} A memo by Justice Roberts  declared that legal efforts to address workplace discrimination against women were “highly objectionable” and that efforts to require employers to pay women the same as men performing jobs of “comparable worth” as “staggeringly pernicious” and “anti-capitalist.”  Will you please explain for us how non-discrimination between men and women for equal pay for comparable work in the corporate workplace is incompatible with capitalism?

The Legal Darwinist primary commitment to personal freedoms is in opposition to regulation by our government of  the behavior of “corporate” persons rather then concern for restraints on our personal behavior.


“The Redeemers who overthrew Reconstruction and established `Home Rule’ in the Southern States conducted their campaign in the name of white supremacy.”, The Strange Career of Jim Crow,C. Vann Woodward, 1974.

Justice Roberts clerked for the late William H. Rehnquist, who as a Supreme Court clerk for Robert H. Jackson, wrote memos arguing against school desegregation. Conservative neo-confederate justices believe that the Confederate States of America interpreted the Constitution correctly, while the interpretation of the Constitution that preserved the union of the United States of America was wrong. This neo-confederate federalism is not the federalism of the framers of the Constitution, but the federalism of the Confederate States that seceded from the union and the “redeemer” state governments that overturned Reconstruction. Their solicitude for states’ rights and for curtailing federal power is grounded in the redemptionist era rulings of the Supreme Court. They believe in those legal precedents that provided the constitutional justification for state governments to “redeem” white supremacy.

{Q} Rayford W. Logan, author of The Betrayal of the Negro From Rutherford B. Hayes to Woodrow Wilson (1965), declares, “Practically all relevant decisions of the United States Supreme Court Court during Reconstruction and to the end of the century nullified or curtailed rights of Negroes which many of the Reconstruction ‘Radicals’ thought they had written into laws and into the Constitution. Some of these decisions are still generally accepted”. Do you agree or disagree? If not why not?

The Rehnquist Court, emulating the Supreme Court’s racist Redemption I judgments that undermined the Civil Rights Acts of the 1860’s, emasculated Reconstruction II by undercutting the 1960’s Civil Rights Acts in a series of cases decided in 1989. Rehnquist’s Neo-Redemptionist Civil Rights rulings were characterized by a conservative “judicial intervention” and “judicial activism” so extreme that even a conservative Congress determined that the Rehnquist Court had gone too far. During the 2nd Session of the 101st Congress, the Civil Rights Act of 1990 was introduced “to restore and strengthen civil rights laws that ban discrimination in employment. The bill responds to a number of recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of these important federal laws.”

Subsequently, the 102nd Congress passed the “Civil Rights Act of 1991,” which specified in Section 3(4) that one of its purposes was “to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination.”

Roberts Was Influenced by Critics of the Warren Court: Like Rehnquist, the Nominee Is a skeptic on Judicial Intervention, headlines the September 6, 2005 issue of the Washington Post.

{Q} Can you cite a bill or any legislation that was passed by Congress to specifically overturn cited liberal “activist” rulings of the Warren Court that are comparable to the congressional legislation that was passed to overturn the cited conservative “activist” civil rights rulings of the Rehnquist Court?

{Q} Author Eric Foner in his work Reconstruction : America’s Unfinished Revolution 1863-1877, (1988) chronicles a case that arose from what he describes as “the bloodiest single act of carnage in all of Reconstruction”. He castigates the Supreme Court’s ruling, writing, ” In the name of federalism, the decision rendered national prosecution of crimes committed against blacks virtually impossible, and gave a green light to acts of terror where local officials either could not or would not enforce the law.” Please identify the Rehnquist court ruling that cites this same redemptionist decision as precedent for nullifying a contemporary congressional civil rights law giving victims of sex-based violent crimes the right to sue their attackers in federal court. Do you find this decision’s reliance on an infamous racist court ruling appalling? If not, why not?

{Q} Stetson Kennedy author of After Appomattox : How the South Won the War (1995), writes, “Not content with having knocked the props out from under the amendments, the Court went on to strike yet another blow at black rights .. these two decisions by the highest court in the land occasioned a vast amount of celebration in the semiautonomous region of the country that had dedicated itself to white rule and apartheid. The hard-won Fourteenth and Fifteenth Amendments to the Bill of Rights were still in the U.S. Constitution, but the statutes designed to enforce them had been largely wiped out. Black rights as dead letters were something the South’s white supremacists could live with.” Author Eric Lurio in The Cartoon Guide to The Constitution of the United States, (1987), describes one of these decisions as “A twisted wonder to behold” and declares, “It is very rare indeed, when the Supreme Court calls the Constitution a liar”. Can you cite the Rehnquist Court ruling that relies on these odious precedents while displaying no coherent legal principle ?


William J. Watkins, Jr. editor of the Freeman magazine, in his essay, Justice Thomas and-the Nature of the Union, published in the Southern Partisan (2nd Quarter 1995), declares, “On Tuesday! May 23, 1995, the Court came within one vote of vindicating the Confederates’ view of the Constitution. Writing for the four dissenting justices in the U.S. Term Limits v. Thornton, Justice Clarence Thomas declared: ‘The ultimate source of the Constitution’s authority is the consent of the people of each individual state, not the consent of the undifferentiated people of the nation as a whole.’  When one examines the words of Justice Thomas it is obvious that he has read the works of the intellectual father of the Confederate States of America, John C. Calhoun.” The New York Times was noticeably vexed as it nervously pointed out that “Justice Thomas’s dissenting opinion almost deposed the Federal Government from its primary role in the constitutional system and resurrected the states as the authentic organs of democratic government.”

{Q} Have you read the works of the intellectual father of the Confederate States of America, John C. Calhoun?  Which of these two presidents best represents your view of federalism, i.e. the nature of the union, Abraham Lincoln, the 16th president of the United States of America, or Jefferson Davis, the former president of the Confederate States of America? TheSouthern Partisan essay goes on to observe: “That we could come so close to seeing our view of the federal compact triumphant 131 years after the surrender at Appomattox ought to hearten all Southerners and friends of constitutional government. The cause that the men in Butternut fought for was a just one whose decision is not yet final. Only by the intelligent use of time, experience, and the history of the federal compact, will we see the tables completely turned. The nature of the union was and remains a critical issue in the life of the Republic.. Though the South came up one vote short of vindicating her view of the Constitution in US Term Limits, the retirement of one justice could remedy the situation.”

{Q} Are you that remedy?