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Cut on a Bias

During the Summer of Love, when people were turning on, tuning in, and dropping out, Congress grew concerned about riots (okay, in fairness, there had also been riots...) By the time the two major parties were holding presidential nominating conventions the following year, Congress had passed the Anti-Riot Act. The Democrats famously met in Chicago in August, 1968 on their way to nominate Hubert Humphrey for president.

This event followed on the heels of the assassination of the favorite candidate, the candidate who spoke of hope and love and peace, the candidate who planned to end capital punishment, the candidate who took the Kerner Commission Report seriously and ached to help heal the country's racial conflict. While candidates campaign in poetry but govern in prose, Robert Kennedy’s poetry made the nation swoon – he sought to propose new policies, a new direction; he ran because he was convinced that the nation was on a dangerous path and that he felt called to do all he could to redirect it. And, because this is America, someone with a firearm murdered him. After his death, much hope for an end to the war in Vietnam, for a federal redress of glaring racial bias across the country, for social equity and economic justice died too. He had engaged young people in his fight and those young people became disillusioned.

So, as the Democrats planned to nominate Humphrey in August, 1968, which promised to deliver more of the same, several youth organizations organized competing events in Chicago – concerts, rallies, gatherings. Despite having permits for many of these, law enforcement was unhappy with the crowds and the language of the speeches. So, they made life difficult for the protesters – and by difficult, I mean bloody - often committing violent acts in the name of keeping the peace. Federal prosecutors in Chicago, eager to play with their bright, shiny new Anti-Riot Act toy, charged eight young men with violating the law. Their trial commenced 54 years ago this week.

It did not go well. The judge was – I want to put this delicately – a law and order type who was also an extraordinary racist and probably not well suited for the robe in the best of cases, but clearly not a good choice for the instant case. A lot can be said about this trial and a lot has been said about this trial. It was a farce from the bench which almost forced the defendants to turn the entire courtroom into performance art. Not only did the judge deny every reasonable defense motion, he also allowed unreasonable ones in favor of the prosecution even when the prosecutors themselves crossed ethical boundaries.

As the Court of Appeals for the Seventh Circuit would later state, "[w]e conclude that the demeanor of the judge and prosecutors would require reversal if other errors did not." United States v. Dellinger, 472 F.2d 340, 391 (7th Cir. 1972). The trial judge immediately lost respect from the litigators and control of the courtroom not because of the charges or because of the defendants, but because the judge was so insanely biased in favor of the government that he – and not the histrionics of the defendants who donned judicial robes and verbally insulted the judge in open court and ate jellybeans during trial – made a mockery of American jurisprudence and reinforced the notion that the criminal justice system is inherently unfair. “The district judge's deprecatory and often antagonistic attitude toward the defense is evident in the record from the very beginning.” United States v. Dellinger, 472 F.2d at 386. It was the bias of the judge, in the end, that caused the convictions to be overturned.

That is because our system relies on fairness in court proceedings. Where appellate courts have the opportunity to remedy such a violation, they can, and sometimes do, as in the case of the Chicago 8. But what about judicial bias when there is no appellate court to rectify the wrongs?

Justice Clarence Thomas has been under a cloud since President George H.W. Bush averred that he was the "best person" to succeed one of the greatest, most thoughtful, accomplished, and brilliant jurists ever to sit on the Court. In short, Clarence Thomas, who, at that point, had been a judge for just months after an otherwise lackluster legal career (foreshadowing here: ironically, he worked at government agencies where he and his co-workers were responsible for establishing regulations and norms for the agencies), was not then - and will never be - in the same league as Thurgood Marshall. Justice Thomas's nomination hearing in 1991 was pitiful: credible accusations of sexual harassment, attestations of his unfitness for the Court including opposition by the NAACP and the Urban League, the absolute lowest rating of any jurist by the American Bar Association, and the lowest vote tally for any successful nominee to the Court.

But even those volatile hearings cannot hold a candle to the ongoing current scandals in which Justice Thomas is embroiled. Putting aside the jaw-dropping conduct of his wife, Justice Thomas has been involved for years in the inner circle of the famed Koch Brothers and their far-right causes, many of which involve issues that have come before the Court. He has accepted expensive gifts without reporting them on his financial disclosure forms. Although he has upheld a significant federal case regarding regulation in the past, he has since declared that he no longer supports the premise, conveniently aligning himself with many of his benefactors and against the American people. There is a case coming up that could overturn that prior decision. Thomas could very well be a deciding vote to overturn precedent again – this time making it nearly impossible for federal agencies - like the ones at which he used to work - to do their jobs.

After the famed Chicago 8 were convicted in kangaroo court trial before a decidedly prejudiced judge, there was a remedy: appeal. The Court of Appeals for the Seventh Circuit, not at all known as a defendant’s court, reversed the convictions and reversed the orders of contempt of court due to the blatant bias of the judge against the defendants. But here there is no remedy (save impeachment which, though all the rage lo these many years in the House, is a non-starter). Even putting aside Justice Thomas’s odd Constitutional interpretation and inaccurate view of history, once he changed his mind on Chevron, there is no question that his extra curricular activities have affected his ability to act as an impartial jurist on the nation’s highest court. He is as biased against opponents of his friends as Judge Hoffman was biased against the protesters in Chicago. The difference is that this guy can do real and lasting damage to the entire country. And will.

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