Pre-Occupied

I visit Occupy L.A.and while the message is muddled, the assembled masses and the mastery of social media give me a major rush. The closest occupiers come to a unifying issue is disgust with banks but a virtually unregulated financial industry is the consequence of the repeal, in 1999, during the Clinton administration, of the 1933 Glass–Steagall Act which prohibited any one institution from acting as any combination of an investment bank, a commercial bank, and an insurance company. This enabled the greedy money brokers who crashed the mortgage industry. Conservative pundits on Fox News shrilly demand less government regulation. It's no wonder as this has certainly paid off for them. Fox News itself exists and is able to disseminate disinformation due to the deregulating Telecommunications Act of 1996, passed under the aegis of Bill Clinton, which allowed for cross media ownership. Because there is no limit to the number of media outlets that a single corporation can control, most Americans now get news that's skewed and filtered to serve the interests of a corporate behemoth. Last year the Supreme Court gave another huge boost to corporate hegemony by ruling in favor of the Koch Brother's PAC Citizen's United, agreeing that restricting corporate political contributions is a violation of the First Amendment guarantee of free speech. An article in the New Yorker “State for Sale” http://www.newyorker.com/reporting/2011/10/10/111010fa_fact_mayer is a wonderful and sickening illustration of how this has played out in North Carolina.

The Occupy movement has been more peaceful than the antecedent civil rights and anti-war movements. The Los Angeles City Council passed, unanimously, a proclamation supporting the demonstration and a number of unions have a big presence. It is certainly favorable to have this support but I can't help but question the sincerity. Maybe the politicians and unionistas are just bet hedging as a buffer from scrutiny, as it appears that the times may finally be a changin.' Political and union participation in the Occupy movement might indeed stifle any discussion of publicly funded elections, which based on where we are now, seem to be an essential ingredient for a true democracy. The legislative and executive branches stand, if the civil rights and anti-war movements are any example, to be altered by the seeds the Occupy Movement are propagating but the judicial arm is (almost) forever. The court as a whole is among of the most conservative in American history and also one of the youngest; the average age of the current justices is 53 so probably, unless there's some sort of global pandemic, there isn't going to be a lot of turnover.

Twenty years ago this week we toured the Gold Rush Country in a rental car listening to the unprecedented senate confirmation hearings of Clarence Thomas which inspired several seasons of Long Dong Silver Jokes on SNL. Despite Anita's Hill's testimony, Thomas was confirmed. Joe Biden led the confirmation committee and he elected not to call witnesses who were willing to corroborate Hill's claims that Thomas was a sleazy perv. Thomas, who has always been virulently opposed to Affirmative Action and has often expressed his contempt for Yale Law School, claiming his admission there was mere tokenism, played the black card and responded, “...from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.” However perhaps he made an even bigger footprint on the landscape by claiming to have no opinion about Roe vs. Wade and other controversial issues that boded for the court. Thomas set a new precedent for court nominees, “taking the 5^th” on inquiries regarding judicial philosophy during confirmation hearings.

Thomas was nominated by Bush the Elder to replace retiring Justice Thurgood Marshall, the only African-American justice on the Court. Thomas was considered the only viable conservative black candidate even though he had never written a legal book or article and had served as a judge for only sixteen months . The American Bar rating of Thomas was the least favorable of any confirmed nominee since the Eisenhower era. Candidates are almost always rated “well qualified” but Thomas was rated only “qualified” by a 13 to 2 vote.

Thomas is considered to be one of the most conservative justices in the history of the court, an “originist” who sees that his responsibilty is only to literally interpret the Consititution regardless of the relevancy, and feels strongly that the court should play no role in the creation of social policy. Thomas' opinion on whether lethal injection consitutes cruel and unusual punishment reads, as Jeffrey Toobin refers to it, “like a slasher movie.” Thomas states that the provision must be “understood in light of the historical practices that led the Framers to include it in the Bill of Rights.” He cites all manner of 18^th century execution methods like burning at the stake, gibbeting, and “embowelling alive” as being what the framers meant by “cruel and unusual” and implying that our modern methods of execution are quite civilized.

Justices Thomas and fellow ultra-conservative Antonin Scalia appear to be in the pocket of the Koch brothers. Thomas denied his affiliation with their Federalist Society but his financial report reveals that they reimbursed him for four days of “transportation, meals and accommodations” over the weekend of a retreat. Justices are free to lecture and attend seminars but they are prohibited from engaging in partisan activities. The Koch shindig in Palm Springs, also attended by Scalia, and billed as “an opportunity to review strategies for combating the multitude of public policies that threaten to destroy America as we know it,” doesn't sound very non-partisan.

Clarence Thomas's integrity is also questionable in other areas. He neglected to report income his wife Jinni earned as a lobbyist for the conservative Heritage Foundation. Between 2003 and 2007, Ginni earned $686,589 and Thomas failed to note the income in his Supreme Court financial disclosure forms for those years, instead checking a box labeled "none" for "spousal non-investment income." He did file amended disclosures but it is puzzling that 689k would slip his ostensibly great mind. Jinni Thomas is now campaigning fervently against President Obama's national heath care plan and there is pressure on Thomas to recuse himself from the pending case although he has indicated he doesn't consider hearing the case a conflict of interests.

If the Occupy Movement sows a more compassionate government and is a catalyst for a more equitable tax structure and reform of the financial industry it will have conquered a lot. I hope the dialogue branches out to include our scanty regulation of giant corporations and the beholdeness of our politicians to them. The Supreme Court is quite an obstacle however. A justice can be removed from the court for a criminal offense but it has never happened. In 1804 an attempt was made to impeach Justice Samuel Chase, one of the signatories of the Declaration of Independence for his “Federalist leanings” but he was acquitted and continued to serve. In 1957, at the peak of McCarthyism, there was a movement that emanated from the South to impeach Earl Warren, Hugo Black and other liberal justices on the grounds that they were communist sympathizers but this never amounted to much more than a few billboards.

It is unlikely the Clarence Thomas, or any other member of the Court will be found guilty of a crime severe enough to provoke an impeachment hearing so we may be condemned for decades to a one of the most conservative courts in history. This is particularly distressing when this year's docket includes cases not only pertinent to national healthcare coverage but also the right to marriage and immigration enforcement. Anthony Kennedy is considered a swing voter, although more often than not his decisions reflect a conservative sensibility. The Supreme Court may be a genuine impediment to the return to a government that is truly for the people but there are tent cities all over the country that I hope herald the end of apathy and feelings of hopelessness. The Judicial Branch is probably beyond the realm of possibility but there are other channels. Let's hope the occupiers get the message that Wall Street is just the tip of the iceberg.

Shabbat Shalom