Being on the Right Side of History

On Monday, the director of the FBI, James Comey, told the American people that the FBI was investigating not only evidence of Russian intrusion into our electoral process; but also the possible involvement of the Trump Campaign and Administration in the Russian hack.  This is a big deal.  The director of the FBI does not talk about ongoing investigations, but he talked about these, on the record and in public.  There is mounting direct and circumstantial evidence that members of Trump’s inner circle — if not the President himself — engaged in criminal, if not treasonous behavior.  And it appears that the investigative powers of the FBI have been unleashed to gather and analyse that evidence.

On Tuesday, the Senate began public hearings on the nomination of Judge Neil Gorsuch to fill the Supreme Court seat left vacant by death of Justice Antonin Scalia.  And today, Trump and House Speaker Paul Ryan are scrambling to corall House Republicans to vote for “Trumpcare” tomorrow.

Cue the sound of a needle scratching vinyl.  Wait, what? There is a criminal investigation at the door of the White House.  And it’s not an investigation that happens to be of the President and his associates; it’s an investigation about the very process that put them there — i.e. THE ELECTION.  If borne out, the allegations being investigated by the FBI may very well result in a finding that the entire election was illegitimate, and that Trump is really not the President.  At the very least, the legitimacy of this administration is in question.

But the Senate is holding hearings to appoint a new Supreme Court Justice; and the House is getting ready to vote on repealing and replacing Obamacare? This is not business as usual, my friends.  And the Republicans need to start getting on board with that reality.

In 1896, the Supreme Court of the United States ruled on the constitutionality of a Louisiana statute “providing for separate railway carriages for the white and colored races.”  In Plessy v. Ferguson, the Court ruled that, while the object of the Fourteenth Amendment was to create “absolute equality of the two races before the law,” such equality extended only to political and civil rights, like voting and serving on juries, and not to “social rights,” such as sitting in the railway car of one’s choice.  The Court noted that “if one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.”  It held the Louisiana statute constitutional, in that it provided for “equal but separate accommodations for the white and colored races.”

Plessy‘s “equal but separate” framework ruled the day in American race relations until the landmark case of Brown v. Board of Education in 1954.  In that case, Chief Justice Earl Warren led the Court to overturn Plessy, holding that even if the tangible facilities were “equal” between the black and white schools, racial segregation in schools is “inherently unequal” and therefore violates the Constitution. Brown is now hailed as one of the great Supreme Court cases, reversing as it did over a century of legal and official segregation in the U.S; and Justice Warren seen as one of our greatest Chief Justices, in part for the role he played in Brown.

During the spring of 2015, defendants and opponents of marriage equality for gay and lesbian Americans eagerly anticipated the Supreme Court’s ruling in the case of Obergefell v. Hodges

We all knew that the Court was divided on most Constitutional questions — with the four liberal jurists likely to find that the Due Process and Equal Protection clauses do require marriage equality; and the four conservative jurists likely to find that those same Constitutional provisions do NOT require marriage equality. And we predicted that Justice Kennedy — a Reagan appointee, who nonetheless often votes with the liberal wing of the Court — would be the swing vote, and would probably write the opinion.

Those of us who are students of Constitutional and Supreme Court history kept Plessy and Brown close to the front of our minds; and we hoped that Justice Kennedy did too.   Obviously, there were there civil rights analogies between those two cases and the one before the Supreme Court in 2015.  But there was something else too.

People who place themselves intentionally in the public eye tend to care about their legacies — they tend to want to be remembered as having been on the right side of history.  No one wants to be the author of Plessy v. Ferguson; we would much rather be known for having written Brown, right?  Not only was Plessy overturned, and is therefore no longer good law; it also represented a narrowing of rights and liberties; rather than a broadening.  History rewards those who bend the moral arc of the universe toward justice.

A decision finding that the Constitution does not provide for marriage equality for all Americans, regardless of gender, would be judged, I believe, the way history has judged Plessy. The decision that Kennedy actually wrote in Obergefell I believe will be judged as Brown has been.  Kennedy’s legacy will be that of a Supreme Court justice who advanced civil rights for all Americans.  His decision placed him on the right side of history, even as it distanced him from his own cohort.

We are at another Brown and Obergefell moment, though this time in the Legislative Branch.  On Monday, we heard an incredible recitation of evidence — about the interference in our election, and the potential involvement of various Trump associates.

We also heard the Republican reaction to that evidence — everything from castigating the “leakers” as the real criminals; to literally blaming Hillary Clinton.

No one knows how the various investigations are going to play out.  But both internationally and domestically, people are starting to doubt the authority and legitimacy of our entire government.  In a chilling column today in the New York Times, veteran journalist Tom Friedman says:

I had several young Arabs from around the region tell me that when America lets its own leader get away with lying, hiding information and smearing the press or a political opponent, it is taken as a license by all Middle Eastern leaders, or the leaders of Turkey or Russia, to do the exact same thing and say: “See, the American president does it, why shouldn’t we?”

The Republicans in Congress need to decide what side of history they want to be on.  Do they want to be remembered as having put their heads in the sand, or worse, when confronted with evidence that, if true, describes violations of one of our most revered institutions — our free and fair democratic elections? Or do they want to put country before party for real and push for the truth to come out as quickly and thoroughly as possible?

James Comey might have already made that calculation, as evidenced by his appearance on the Hill on Monday.  The rest of them — Senator Richard Burr, the chair of the Senate Intelligence Committee; Representative Devon Nunes, the chair of the House Intelligence Committee are the two who immediately spring to mind, but there are others in positions of power — better get on board if they too want to be remembered as patriots who worked to bend the moral arc of the universe toward justice.