In the shifting sands of modern American politics, no victory is certain. And no group knows that better than civil rights advocates, who have seen one legislative success after another undercut by the decision of a right-wing judge, Penn professor Mary Frances Berry told the audience at the A. Leon Higginbotham Memorial Lecture last November.
"You can lose while you think you're winning, in the end, if you don't have the courts," she argued, describing how judges appointed by the last three Republican presidents have reinterpreted key civil rights laws more and more narrowly, rendering them increasingly toothless.
Berry, who teaches legal history courses in the College of Arts and Sciences and chaired the U.S. Commission on Civil Rights from 1993 to 2004, related this "tale not told" from the perspective of her membership in the Leadership Conference on Civil Rights, the largest and oldest civil rights coalition in the United States. "In the 1980s, the LCCR appeared to have the presidents on the run," she recalled. During that decade, after all, Berry and her allies extended the reach of key historical civil rights laws, such as the Voting Rights Act and the Fair Housing Act, and went on to pass a host of new ones, including the Civil Rights Restoration Act of 1988.
Berry said President Reagan repeatedly tried to counter these advances but was always overridden at the legislative level. One of his Supreme Court nominees, Robert Bork, had written articles too obviously prejudiced to win confirmation, she said. But Reagan's next nominee, Anthony Kennedy, didn't have such a clear record when it came to civil rights. "Thus began the era of stealth nominees," Berry declared. Over the next two decades, she said, the Supreme Court, tilted further to the right with the addition of Antonin Scalia and Clarence Thomas, cut away at civil rights legislation. It began with a spate of Supreme Court-ordered restrictions on anti-discrimination laws in 1989, and continued with rulings like Abrams v. Johnson (1997), which reduced the number of majority-black voting districts in Georgia to one. Republicans "want to control the interpretation of legislation after it's passed," Berry explained. "They're more political than the Democrats... they understand how important the courts are." So far, Berry said, she's disappointed with Obama's judicial appointments. By mid-November, Obama had only nominated 25 judges for appointment. At the same point in his first term, George W. Bush had nominated 95. Obama's relative slowness, Berry argued, is due to the fact that he's "looking for people who are absolutely uncontroversial, unspotted by the world — clean, squeaky, perfect." But then again, she said, "liberal Democrats are constitutionally incapable of playing hardball."