I would like to watch you sleeping,
which may not happen.
I would like to watch you,
sleeping. I would like to sleep
with you, to enter
your sleep as its smooth dark wave
slides over my head
and walk with you through that lucent
wavering forest of bluegreen leaves
with its watery sun & three moons
towards the cave where you must descend,
towards your worst fear
I would like to give you the silver
branch, the small white flower, the one
word that will protect you
from the grief at the center
of your dream, from the grief
at the center. I would like to follow
you up the long stairway
again & become
the boat that would row you back
carefully, a flame
in two cupped hands
to where your body lies
beside me, and you enter
it as easily as breathing in
I would like to be the air
that inhabits you for a moment
only. I would like to be that unnoticed
& that necessary.
The poem is for my usual Tuesday poetry post, but if you'd like to read why I chose it and a political commentary on the dangers of the new Supreme Court Justice, read on.
With the Senate confirmation of Judge Handmaid to the Supreme Court last night, I thought I’d post a poem by the author of The Handmaid's Tale, Canadian author Margaret Atwood. To be fair, the religious extremist group People of Praise to which Amy Coney Barrett belongs were the first call its female advisers “hands” and “handmaids.” Their use of the term predated Margaret Atwood’s The Handmaid’s Tale. They no longer use the term. It also appears that the group was not Atwood’s direct inspiration. Still, it looks like we are in for a dystopian future of our own with the court dominated by conservatives who want to take away all the freedoms gained by women and the LGBTQ+ community in the past 50 years.
Her silence on the most basic issues of republican self-rule tells us to be ready for the worst. In her confirmation hearings, she wouldn’t say if voter intimidation is illegal, even though it plainly is. She wouldn’t say if a president has the power to postpone an election, even though he doesn’t. She wouldn’t even say that a president should commit himself to a peaceful transfer of power, telling Sen. Cory Booker (D-N.J.) that “to the extent that this is a political controversy right now, as a judge I want to stay out of it.” What exactly is controversial in a democratic republic about the peaceful transfer of power? It’s hard to escape the conclusion that she was nodding to the president who nominated her. He said he wanted a friendly judge on the court to deal with electoral matters, and he continues to signal that one of the most sacred concepts of a free republic is inoperative when it comes to himself. Rushing to confirm such a nominee just in time to rule on any election controversies (from which she refused to commit to recusing herself) should be troubling enough. But it is all the worse for being part of a tangle of excesses by the Republican Party and the conservative movement. Keep in mind that in Bush v. Gore, Chief Justice John Roberts Jr., Justice Brett Kavanaugh, and Barrett were all Bush lawyers in that fight.
Margaret Atwood’s dystopian Gilead of The Handmaid’s Tale centers on a hierarchical system of red-clad handmaids and blue-draped wives. The handmaids are stripped of rights and forced to bear children for wealthy infertile couples. Though the wives also face patriarchal rules forbidding them from activities like reading, they enjoy significantly more autonomy than handmaids. The wives don’t merely uphold the brutal heterosexist regime; they were instrumental in its creation. Throughout Hulu’s adaptation, wife Serena, played by Yvonne Strahovski, is shown like a fictional Phyllis Schlafly, proselytizing regressive policies in flashbacks. And like The Handmaid’s Tale’s wives, Amy Coney Barrett is working to build a more unjust society for oppressed communities, despite being a woman herself.
Barrett’s confirmation will turn the clock back on human rights, but similarly to the wives in The Handmaid’s Tale, Barrett will not face the full consequences of her judicial decisions. Conservative white women have upheld and continue to support patriarchal white supremacy and punitive capitalism at the direct expense of others. Barrett’s false feminist promise of the possibility to have it all—a large family and successful career—is not a reality for many working-class women, but rather “an example to young women across America of what they can do if they have enough money.” The impact of America’s policies on Black women, women of color, low-income women, indigenous women, immigrant women, and queer and trans folks already reflect conditions similar to those in The Handmaid’s Tale.
Though Barrett skirted questions about how she would rule on abortion during Senate hearings, it is clear she seeks to erode abortion rights. Trump vowed to appoint so-called pro-life judges. Barrett’s past writings indicate she will be one. On the 7th Circuit Court of Appeals, Barrett supported judicial opinions to require parental notification for abortions without exception and mandate the cremation of fetal remains.
Many pregnant women already face undue burdens when seeking abortion care. The Hyde Amendment prevents federal Medicaid funds from paying for abortions. This racist and classist policy disproportionately affects Black and Latinx patients, who are more likely to be enrolled in Medicaid. Rural patients also face barriers to care: 89 percent of U.S. counties do not have an abortion clinic. Many pregnant women seeking abortions must travel across state lines to receive care, racking up travel bills, and risking jobs when they have to take multiple days off. As Barrett has said she would do, these communities would be disproportionally harmed by further restricting access to care, even if Roe v. Wade holds.
Barrett’s likely rulings on abortion aren’t the only decisions she would hand down without personal consequence. Barrett sparked controversy during the Senate hearings after using the term “sexual preference” in response to Senator Dianne Feinstein’s question about Obergefell v. Hodges. Her use of this outdated term that implies sexuality is a choice caused concern among LGBTQ+ rights organizations. This problem is even more acute in light of the statement Justices Clarence Thomas and Samuel Alito penned earlier this month, indicating their desire to overturn Obergefell. While Barrett later clarified that she hadn’t meant “any offense” by her use of the term, her apparent lack of knowledge of its implication does not bode well in a nation that already undervalues and harms LGBTQ+ people, especially Black trans women.
In 175 election-related cases this year, it found that Republican appointees interpreted the law in ways that impeded access to the ballot 80 percent of the time, compared with 37 percent for Democratic appointees. The best case for the enlargement of the Supreme Court is likely to be made by the court’s conservative judicial activists themselves. It would be good for democracy if they showed some restraint. But everything about this struggle so far tells us that restraint is no longer a word in their vocabulary and that prudence is not a virtue they honor anymore.
That’s the thing about her jurisprudence—it is not aimed at making life better for systemically marginalized people. And this is precisely the problem the handmaid comparison ignores. Barrett is the oppressor, not the oppressed. She would make handmaids out of others.
8 comments:
On November 1st, we'll set clocks backward for winter days...
With this Amy «Covid» Barrett in the SCOTUS, Republicans are setting the social rights in USA backward decades into religious bigotry and narrow minded justice based on hate of anyone who isn't white-straight-wealthy-Christian.
In front of the Senate, she really showed how hypocrite she can be avoiding answers on important social issues of the 21st century in USA.
DJT is putting in place his legacy for decades ahead to maintain USA behind the most advanced other democracy in the world.
The result is that many Americans of the lower income people will suffer and be suffering again and again without any hope for that «American Dream» they came for and fought for.
Yes, don't call them «conservatives» but more «regressives»..
The difference between the left and the right is that the left want results-oriented decisions — first decide who should win the case, and then make up reasons for saying why it's te law — while the right want judges who will look at the law and decide which patry's case has the law on its side. This has been obvious at least since Ted Kennedy borked Robert Bork. Kennedy would cite a case in which a group he favored lost and complain that Judge Bork (who was an appeals court judge) had ruled against women, minorities, workers, you name it — as if the case were about whole classes, rather than the actual parties. Judge Bork would patientl and thouroughly explain why, given the facts of the particular case and the law, he ruled as he did. Kennedy completely ignored Bork's explanation of the case with a dismissive, "Well, I think the American people want equality for women/minorities/workers/watever." It was nothing but propaganda designed to stir up opposition to Judge Bork, and it worked. So the Democrats continue to roll out their doomsday propaganda machine every time they are afraid a nominee will base rulings on the law (horror!) rather than their desired policy outcomes.
If anybody wonders why the Supreme Court seems politicized, it's because the Democrats have politicized it. It used to be that the American Bar Association would rate judicial nominees as "qualified, well qualified, or highly qualified" on a non=partisan basis, and the Senate would routinely confirm nominees who were "well qualified" or "highly qualified," recognizing the right of the President to choose. They acted as a brake if he tried to slip someone through who was only minimally qualified
If the Democrats will stop viewing the Court as a political branch of government, perhaps they might even notice that the "conservative" wing doesn't always vote as a bloc, and that they don't always do what a president of "their party" wants. Of course, it isn't surprising that judges who have the same philosophy will vote together frequently. But the times they don't show that they are thinking for themselves.
In other words, don't fall for the propaganda that wants you to believe that the confirmation of Amy Coney Barrett means the wholesale abolition of human rights.
I should add two things.
1.) I know about the Bork hearings because I watched the rebroadcasts each day when I got home from work.
2,) Refusing to answer questions about specific issues is something SCOTUS nominees, including RBG, have done for years. There is nothing unusual or sinister in Justice Barrett's following the tradition. The Democrats' attempt to paint it as a problem is an example of their politically motivated propaganda.
@naturgesetz,
That's just the point you brought here and no matter you «Democrates» or «Republicans» propaganda or ways to put their appointes in the courts, those are no more objective places to debate the laws of USA.
Something you don't see in many democratic countries like here in Canada.
Our judges has the obligation to never show their politic believes or on what side they vote.
The nomination of our judges has no way the same politic influences than yours.
Also, here religion is out of any politics for so many years now.
We are a social democracy and we care for our people as for our universal health care systeme that many Americans and some of your leaders envy.
Justice, I mean real Justice in USA is in peril and seeing the double standards on race inequities is putting bad reputation on the ways police and justice system treat those that aren't white people.
So many changes have to be done in USA in the 21st century and more now with this pandemic that exasherbate social differences.
I have to respectfully disagree with you on a number of points, naturgesetz. This should not be a matter of politics; it should be a matter of interpreting the law. The conservative justices are originalists or textualists. While the two were originally very different terms, they have mostly merged into the original meaning theory. Originalist and Textualists, like the conservative justices currently on the Court, view the interpretation of a written constitution or law based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. As a historian, I see this judicial philosophy to be ludicrous. There is no way to know what the framers of the Constitution meant by every word they wrote.
While James Madison did take notes during the Connotational Convention, many of those notes were destroyed before the official journal was handed over to George Washington. The document that survived was what the members of the Convention thought would best convince states to adopt the new document. Yes, the Federalist Papers give us some clue as to the Constitution's intent, but it was written as persuasion, not interpretation. Without having a time capsule to return to 1787, we cannot ask the members of the Convention what they meant by what they wrote. It is also challenging to determine what “reasonable persons living at the time” interpreted the meaning to be. By putting words into the mouths of long-dead Founding Fathers, the process has become inherently political. No matter what people argue, it has always been political, long before the confirmation hearings of Robert Bork.
Furthermore, the Founders did make it apparent that the Constitution was to be a living document. If it were not a living document, there would have been no process for amendments, and we would still have slavery and segregation among many other ills of America throughout history. The Supreme Court has always strived to right the wrongs and serve as a check and balance to Congress and the President, just as Congress is a check and balance for the President and Supreme Court, and the President is a check and balance on Congress and the Supreme Court. This is the separation of powers that is the foundations of American democracy. The liberal justices understand that the Constitution is a living document and that it is impossible to determine the original meaning of every word of the Constitution.
I will agree that the confirmation hearings are a farce, and the blame largely lies with the Democratic Party of the late 1980s. Since Bork’s confirmation hearings in 1987, the confirmation process has become extremely partisan. Republicans attack Democrat nominees, and Democrats attack Republican nominees. But a few important things came out of the Barrett hearings. She made it clear that she is out of date on LGBTQ+ issues. She couldn’t name the five freedoms in the First Amendment, which should be very simple for a federal judge. Furthermore, she refused to state whether she would recuse herself if election issues came before the Court. Barrett has served on the federal bench for less than three years. That is not a person who is “well qualified” as the American Bar Association claims. All of the United States has become politicized over every issue.
It seems to me that the reason for the amendment process is precisely because the Constitution is not a living document. If the Constitution were a living document the Court could have abolished slavery and established women's suffrage on its own. (Whether or when it would have is a separate question.)
While it may be challenging at times to determine what the framers or ratifying legislators understood about every word, I think it comports better with having a written document to try to figure it out as best one can, than to say, "Whatever it was supposed to mean back then, today this is what we want it to mean." The whole purpose of writing things down is to have a fixed meaning. Of course, there are developments, e.g., electronic meaans of communication, weapons of mass destruction, and the framers' intent with respect to being secure from unreasonable searches and seizures or bearing arms has to be applied to these things — or we need to amend the Constitution if, as written, it no longer fits.
I think both parties demonize the opposition as a way of scaring their supporters into sending more money. (So do special interest groups of all political persuasions.) And having more money just lets them demonize their opponents even more. Unfortunately, the voters believe the demonizing rhetoric, and senators and members of congress get trapped: the rabid partisans won't let them compromise. That's what destroyed the Republican party. For example, here in Massachusetts, a moderate Republican — the only kind who can possibly win in this state — named Scott Brown was elected to the Senate. But then the hard right wingers started calling him a RINO, and he lost to Elizabeth Warren. So you end up with a party where few people people dare take moderate positions.
I would urge you to read these two articles, both written by historians and political scientists, naturgesetz:
https://www.washingtonpost.com/outlook/2020/10/26/amy-coney-barretts-philosophy-has-far-worse-roots-than-most-americans-know/
https://www.theatlantic.com/ideas/archive/2020/10/originalism-barrett/616844/
They make my point better than I'd be able to in the short space of a comment, and I have to agree with what they say. With each of them, you will see that they address your comments about slavery and women's suffrage.
Thanks, Joe.
The Times wouldn't let me read their article unless I paid them $29, so I didn't. The Atlantic makes the obvious point that words and phrases such as unreasonable, due process, or equal protection must be interpreted (unlike thirty-five). No kidding! But where is a judge to start? With how s/he feels about what they ought to mean today or with what the framers seem to have understood? Unreasonable has to mean more than, "I don't like it." And BTW, it isn't just what we can find out about what the framers said and wrote. There is also a body of writings such as the Common Law of England or the writings of philosophers whom they quote approvingly from time to time. Similarly, when considering establishment of religion, judges can look at the Church of England and the established churches of the colonies as a guide to what the phrase meant at the time the Bill of Rights was adopted.
But original intent is the beginning. When there are new realities or new forms of behavior — airplanes that can carry bombs, interreligious activities on public property — original intent can inform judicial decision making, but it doesn't give an automatic answer.
I really think the authors have created a straw man of "originalism," which they easily blow away, but when Justice Barrett says certain cases were correctly decided, contrary to their notion of originalism, it either means that they misunderstand originalism or she isn't as rigid in her originalism as they fear — or both.
In practice, the difference between originalists and "living constitutionalists" may be less than some people think, although there are no doubt a few decisions which liberals consider very important but originalists might want to reverse.
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