Hysteria about the Supreme Court vacancy isn't about abortion — it's about reparations

Hysteria about the Supreme Court vacancy isn't about abortion — it's about reparations
© Getty Images

The political left’s freakout over Supreme Court Associate Justice Anthony Kennedy’s announced retirement was not wholly unexpected. Still smarting from what they consider to be a “stolen” Obama seat — Neil Gorsuch instead of Merrick GarlandMerrick Brian GarlandPoll: Americans more divided on Trump Supreme Court pick than any other since 1987 Don’t worry (too much) about Kavanaugh changing the Supreme Court Dem infighting erupts over Supreme Court pick MORE — their apoplexy has been vented on the Republic. The #Resistance is in full-throated opposition to the notion that a conservative Supreme Court seat is about to be filled by a conservative.

They’re also in denial.

ADVERTISEMENT
Former Senate Majority Leader Harry ReidHarry Mason ReidSenate GOP breaks record on confirming Trump picks for key court Don’t worry (too much) about Kavanaugh changing the Supreme Court Dem infighting erupts over Supreme Court pick MORE (D-Nev.) transformed the collegial Senate, so that it no longer conforms to traditional rules requiring at least a few of the minority party to approve a nomination.

 

The “nuclear option” now makes possible simple majority rule. Republicans cling to a 50-49 voting edge, with Sen. John McCainJohn Sidney McCainControversial Trump judicial nominee withdraws Trump vows to hold second meeting with Putin Ex-Montenegro leader fires back at Trump: ‘Strangest president' in history MORE (R-Ariz.) battling brain cancer. So the nominee Trump announces next week will be confirmed by majority vote. Democrats’ efforts to stall the vote until after the midterm elections are a pipe dream. (Nice work, Sen. Reid.)

At first glance, the cornerstone issue that liberals are raising in their “sky is falling” warning is fear that Roe v. Wade, the landmark 1973 decision making abortion legal in all 50 states, will be overturned.

But let’s acknowledge that certain bipartisan confirmation guardrails are in place: Liberals are pressuring sympathetic GOP senators Susan CollinsSusan Margaret CollinsThe Hill's Morning Report — Russia furor grips Washington Overnight Health Care: Novartis pulls back on drug price hikes | House Dems launch Medicare for All caucus | Trump officials pushing ahead on Medicaid work requirements Senate panel to vote next week on banning 'gag clauses' in pharmacy contracts MORE of Maine and Lisa MurkowskiLisa Ann MurkowskiThis week: GOP mulls vote on ‘abolish ICE’ legislation Dem infighting erupts over Supreme Court pick McConnell: Senate to confirm Kavanaugh by Oct. 1 MORE of Alaska; both are pro-choice and will press any nominee to adhere to precedent — the legal principle known as stare decisis. (President TrumpDonald John TrumpNFL freezes policy barring players from protesting during anthem McConnell spokesman on Putin visit: 'There is no invitation from Congress' Petition urges University of Virginia not to hire Marc Short MORE would be well-served by his staff advising the selection of a candidate who will testify during confirmation hearings that he or she has no interest in upending Roe).

However, a word of caution to prematurely jubilant conservatives: The left’s concern over Trump’s appointment isn’t really just about abortion. Safe, legal abortion will never be abridged in 2018 America or beyond.

The overwrought concern stems from replacing a “conservative” Kennedy — a champion of LGBT rights and other progressive causes — with a more staunchly conservative justice who may not be counted on to be the liberal-sympathetic swing vote Kennedy was.

No, the political left senses that a reinforced Trump court, packed with strict constructionists, may impede or slow the inexorable march towards America’s transformation on a host of issues, none perhaps more important, troubling or divisive than race.

A progressive court would sense our nation’s sovereign borders differently; immigration issues would be viewed through the prism of globalism. Liberal judges tend to apply pluralistic conditions to their considered opinions. Judicial activism would proliferate in the guise of “righting historical injustices” and, in particular, redressing America’s “original sin” — slavery.

If Trump succeeds in appointing a conservative justice, for example, the court effectively would rule against any legislative efforts to have America –  meaning the taxpayer – pay some $4.1 trillion to African Americans related to the impact of slavery, as David Horowitz outlines in his 2016 book, “Progressive Racism.”

A liberal Court would see this controversial issue very differently than a conservative Court. And some supporters of reparations already have mapped a way for descendants of slaves to receive some form of compensation.

Georgetown University professor and author Michael Eric Dyson has gone so far as to suggest that white Americans — no matter whether their ancestors were slave-owners or not — should maintain an “individual reparations account” as a means of “atonement.” This would involve making donations to African American groups.

The Trump administration’s Department of Education already has begun moves to undercut Obama-era policy guidelines to universities to consider race in college admissions if legally possible.

Quotas, racial preferences, and the landmark 1978 Supreme Court decision to legalize affirmative action have given way to a far more innocuous, benign term — diversity — and been upheld by the Court as recently as 2016. But the construct — reparations — remains the same.

While these “reparations” may be well-intended, they penalize Americans whose ancestors played no role in slavery, in order to compensate Americans who were never enslaved. If the Supreme Court’s ideological majority flipped, future generations would be left to foot the bill.

Hugh Thomas outlines slavery’s onerous past in his 1997 book, “The Slave Trade, The Story of the Atlantic Slave Trade: 1440-1870.” While the United States participated in that repugnant institution for some 246 years, Thomas defines slavery as a major institution in antiquity: “Prehistoric graves in Lower Egypt suggest that a Libyan people of about 8,000 B.C. enslaved a Bushman or Negrito tribe.” Since slavery in some form still exists today, that means the United States participated in this reprehensible institution for less than 2.5 percent of slavery's existence.

The past decade has seen our country become deeply divided along political and, sadly, racial lines. Tribalism is alive and well, and the current occupant of the Oval Office has cynically harnessed the “energy” from that divide for partisan political purpose. But a decision to mete out reparations may rip our nation asunder.

How to calculate who pays, and how much? And, please, don’t tell me about my “white privilege.” I grew up in an African American neighborhood and graduated from an elementary school where I was a minority. So what “debt” is owed by my family?

On my mother’s side, my great-great-great grandfather, Francis J. Petry, served with the New York State Militia during the Civil War as part of the Union effort to free the slaves. And my paternal great-grandfather, Saverio Gagliano, arrived at Ellis Island, off the boat from Sicily, in 1905.

There simply is no fair way to punish long-dead folks we feel should be punished and still avoid collateral damage to innocent families or our national debt, fueling a debate that would roil our nation for generations.

Trump’s imprimatur on the Supreme Court will have a lasting impact on our nation that has nothing to do with Roe, and everything to do with racially divisive issues like reparations.

James A. Gagliano is a CNN law enforcement analyst and retired FBI supervisory special agent. He is an adjunct assistant professor at St. John's University and a leadership consultant at Thayer Leader Development Group (TLDG) at his alma mater, the U.S. Military Academy at West Point. Follow him on Twitter @JamesAGagliano.