Back when Jimmy Carter was president and right was supposed to be as good as might, the citizens of the District of Columbia approved a referendum to hold a convention that could be the first step in the process of making the city a state. This little piece of idealism has to go down in American history along with such utopian schemes as New Harmony -- a product of a bygone time that now seems to very much out of date. We all have new concerns.
One of mine is the Supreme Court. It recently has concluded its session, handing down decision after decision, breathtaking in their clumsiness, awe-inspiring in their lack of reach and finally a bit chilling in what they do to civil liberties and the dignity of man. In that context, it seems a bit silly to worry about whether the next member of that august body is going to be a man or a woman. At the moment, I would settle for a good lawyer.
The debate over the sex of the replacement for Justice Potter Stewart is, like the attempt of the District of Columbia, to become a state, an anachronism. It is rooted in another era, a time of noble cause when the political landscape seemed much different. No one seeing how conservative Congress has become could possibly think that it would approve of Washington becoming the 51st state. And no one looking at what the Supreme Court has done could possibly think that the real cause for concern right now is the sex -- as opposed to the ideology -- of the new justice.
In the last term, for instance, the court deferred to Congress and upheld its right to exclude women from draft registration and therefore from the draft. It said Congress could do what it wanted when it came to raising an army and deciding who could go into combat. This Supreme Court apparently thinks Congress has the right to be wrong.
It thinks also that the states have a right to keep people in overcrowded prisons. This, it said in Rhodes v. Chapman, is not cruel and unusual punishment, nor is it unconstitutional for states to maintain terrible institutions for the mentally retarded. In both of these cases, it deferred to the states, but the fact of the matter is that this court will defer to almost anyone. It has a very limited view of its role. This is the court Richard Nixon always wanted and now Ronald Reagan has it.
This tendency to defer reached its high-water mark in the recent case involving Philip Agee, the former CIA agent who has taken it upon himself to travel the world, attempting to expose his former colleagues wherever they may be and however they might be disguised. This Agee is a bad fellow and to attempt to stop Agee from doing damage, Secretary of State Cyrus Vance in December 1979, lifted his passport. Vance acted under a 1966 State Department regulation that gave the Secretary of State the right to deny a passport to persons who "are causing or are likely to cause serious damage to the national security or the foreign policy of the United States."
Forget for a moment how broad the language of this regulation is, and concentrate for a moment on what it is -- a regulation . It is not a law. This is not the will of the people as expressed by Congress and signed by the president.This is a regulation and it is one that regulates free speech. Could a journalist hve his or her passport lifted for articles critical of the foreign policy of the United States, assuming that he or she could figure out what our foreign policy is? Would you or I be denied a passport if we wanted to go to El Salvador to denounce our country's policy there?
Who knows? The answer, apparently, is that it would be up to the secretary of state, who no longer is the benign Cy Vance attempting to deal with a renegade like Agee, but Alexander Haig, a man who once tried to deal with sinister forces. He sees them everywhere.
The upshot is a court decision that can only chill free speech. It was the court's finale of sorts to an undistinguished session in which states rights and presidential rights and Congressional rights took precedence over civil liberties and individual rights. To worry in this context whether the new justice is a man or a woman when neither one probably is going to do women or anyone else much good, seems somehow beside the point. It won't be a civil libertarian, and that's what really matters.