Monday, October 03, 2005

The confirmation gamble

Everybody's freaked about Harriet Miers. The hard right feels especially betrayed (via Eric Muller). My brother has a Texas take:

She is from a big Dallas law firm. Dallas is a city with no soul. It is nothing but glass and steel towers erected on a bleak prairie and dedicated to the worship of Mammon in spite of the presence of quite a few megachurches . . .

But how history consoles! Consider John J. Parker, who sat on the 4th Circuit from 1925 till his death in 1958. In 1930 Hoover nominated him to the Supreme Court, but the nomination faltered. He became the only nominee to fail in the Senate since 1894, and he stood alone until 1968 when Abe Fortas' own troubles did him in.

With Parker it was the AFL who lashed out at him--for being anti-union generally and, more particularly, for a decision denying the UMW the right to organize--and if that were not enough, the NAACP, which had never opposed a nominee before, joined the chorus. They pointed out that Parker had run for governor of North Carolina in 1920 promising to restrict the voting rights of blacks.

So he never got out of Richmond. Just as well, right? Not exactly. After Brown, which had seemed to want to undo all of Jim Crow but on its face hewed narrowly to "the field of public education," there was great uncertainty in the courts below. It was up to judges like Parker to deal with the consequences.

When District Judge Rives of Alabama ruled in Browder v. Gayle (1956), the Montgomery bus boycott case, that Plessy v. Ferguson had been "impliedly, if not explicitly" overruled, he glanced over to the 4th circuit opinions of the "distinguished" and "learned" John J. Parker. In a 1955 opinion declaring South Carolina's segregated bus system unconstitutional (Flemming v. South Carolina Electric & Gas), Judge Parker had written that Brown "[left] no doubt that that the separate but equal doctrine approved in Plessy v. Ferguson has been repudiated," a conclusion the Supreme Court did not disturb.

Another, more philosophical opinion was also helpful to Judge Rives. In Barnette v. West Virginia State Board of Education (1942), Judge Parker had to deal with a Supreme Court precedent that seemed to stand in the way: "Ordinarily we would feel constrained to follow an unreversed decision of the Supreme Court of the United States, whether we agreed with it or not," he wrote, but given that most members of the Court itself had since questioned their own decision, he plunged right ahead.

Barnette vindicated the religious rights of Jehovah's Witness students to refuse to salute the flag. Judge Parker's opinion was upheld in an opinion written by Justice Jackson that still stands as one of the great expressions of First Amendment rights. Judge Rives' opinion vindicating the Montgomery bus boycott was upheld too.

So the lesson is, you never know.

UPDATE: Never mind. The NAACP had the right instincts. Judge Parker, the one and the same, was responsible for language in a post-Brown proceeding in which he declared that Brown "does not require integration. It merely forbids discrimination" (Briggs v. Elliott, Eastern Dist. of S.C. 1955). That pernicious misreading is something John Wisdom of the 5th Circuit, for one, had to expend a lot of time and energy refuting.

No comments: