Apartheid. USA 1988

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October 17, 1987:

In the controversy surrounding President Reagan's nomination of Judge Robert H Bork to the Supreme Court, a new scandal arose. It turned out that a black aide to the Senate Judiciary Committee, Linda Greene, telephoned the only black law professor scheduled to testify in favor of Judge Bork's appointment. Miss Greene warned Professor John T Baker of the University of Indiana Law School the day before he was scheduled to testify. Professor Baker did fly to Washington but called the White House next morning to say he would not testify. Supporters of Judge Bork say Miss Greene's action was improper and possibly illegal and showed how Judge Bork's opponents sullied the confirmation process and turned the Senate against him. Miss Greene said she warned Professor Baker to expect a grueling public examination of both his academic career and scholarship and wanted to spare him this public ordeal out of friendship.^156.

In a new book by Abigail M Thernstrom, published by the Harvard University Press, called ‘Whose Votes Count?’: Affirmative Action and Minority Voting Rights, it was further examined how President Lyndon B Johnson in 1965 set the stage for the sweeping, regional and punitive law that has changed the political face of the South. First, Johnson promised a joint session of Congress that ‘we shall overcome’. Then he delivered on that promise, and four months later, literacy tests were banned and Federal registrars were signing up blacks to vote in seven Southern states (as recently as 1965). By 1966, black votes in the South mattered enough for white politicians to court them, and they still do today. By 1972, 1.1 million black votes were registered in an area covered then by the Voting Rights Act.

Abigail Thernstrom describes in her book how the impact of the Act has changed in two decades since it was passed. She argues that these changes have come about with too

156. The New York Times, from a report by Martin Tolchin

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little careful thought or open debate. Miss Thernstrom, who is a lecturer and senior research associate at Brandeis University, said at the outset, it was an act to get blacks registered. Now it has become a law to ensure that their votes are influential, especially at the local and legislative levels. In practice, the law now often requires the creation of districts whose boundaries assure the election of black, and sometimes Hispanic, candidates. She argues further that ‘judicial and adminstrative decisions too frequently suggest that only blacks can represent blacks,’ and complains of the law's apparent belief in the entitlement of black and Hispanic candidates everywhere to extraordinary protection from white competition.’

Can blacks get elected without such protection? Or, to put it more bluntly, will whites vote for black candidates? Here, Miss Thernstrom's research, admirable on the legal and administrative side, lets her down by not measuring political realities. ‘She seems to argue what she thinks, not what she can prove,’ wrote Adam Clymer in the Times. It would be nice, of course, if race meant less to most voters than it does. But in politics few serious participants have the luxury of dealing with an ideal world... Civil rights lawyers, like presidential candidates, have to deal with the system as it is, not as they or Miss Thernstrom wishes it were.^157.

Virginia prisons are jammed with their share of poorly educated inmates. Two-thirds of the 11 500 prisoners in the Virginia prison system do not have a high school education, and one-third are classified as ‘functionally illiterate’, or unable to read and write above the sixth-grade level. That is almost 4 000 inmates. Now prison authorities in Virginia designed ‘a parole award for inmates, that go to class.’ In the argot of the Caroline Correction Unit, a medium-security home for 132 burglars, robbers, rapists and assorted other felons, posters are on display saying, ‘Learn to read

157. The New York Times, from a review by Adam Clymer in the Literary Review of the week in the Sunday Times

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above the sixth-grade level and you just might win an early parole.’ Now in most Virginia prisons, denim-clad inmates are not only in prison but also in class, learning to read and write in a 900 000 dollars experimental literacy program that is closely watched by prisoners and penologists across the country.^158.

Associate Justice Thurgood Marshall of the Supreme Court, who is 79 years old and is black, told a conference of lawyers and judges, that he would outlive critics who have called for his retirement. ‘Don't worry, I am going to outlive those bastards,’ Judge Marshall said. He has reportedly told acquaintances that he would do everything possible to remain on the bench through the Reagan Administration. Justice Marshall has been highly critical of President Reagan's civil rights record. He sharply differed with the Reagan Administration on rights issues and other points.

Recalling in his speech what it was like in an earlier time when he was a leading civil rights lawyer, Justice Marshall said he and others had to eat and sleep in the same car they used to travel through the South. There was no place to eat those days in the 1940's and 1950's. We slept in the car and ate fruit. One place in Mississippi, we were eating and talking to people and a little kid, I guess 12 or 14 years old, saw that I was eating an orange. I said, ‘Hey you want one of these?’ He said ‘Yeah’. So I gave him one and he just bit into it. He didn't peel it. You know why? It was the first time he had ever seen an orange. That will tell you what we had in those days.’

Justice Marshall expressed also strong criticism of a Supreme Court decision last term upholding the constitutionality of the Bail Reform Act of 1984. The law permits now the jailing of suspects who are shown to be likely to commit crimes, even if they are unrelated to the pending charges. ‘Preventive detention severely undermines our long established and much revered principle that a person accused of

158. The New York Times, from a report by B Drummond Ayres Jr

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a crime is presumed innocent until proven guilty,’ he said. ‘The Court has traced this principle back to the great civilizations of ancient Greece and Rome. Indictment of a crime curtails the accused's liberty insofar as, but not farther than, the conduct of his trial requires. To conclude as the majority seems to, that those indicted may have their liberty curtailed whenever general social welfare so demands, is to convert the indictment into substantive evidence of wrongdoing, a result clearly at odds with the presumption that one is innocent in the face of the accusation.’ Justice Marshall maintained that the acceptance of the Bail Reform Act by a majority of the Court powerfully illustrated, ‘that the first things that society seems willing to jettison in its search for security are the rights of the accused of violent or otherwise despicable crimes.’ He added, ‘I worry that we might not realize until too late the value of what has been cast aside.’^159.

159. The New York Times, from a report by Stephen Labaton.