The Bush Legacy: Reason for Hope

Read Isaiah's account of this morning's landmark panel [1] with Roger Wilkins, Jesse Jackson, and Taylor Branch before you bother with my mere two cents.

OK. Two wonderful quotes. Roger Wilkins, the former assistant attorney general for civil rights under Lyndon Johnson—the civil rights movement's inside man in the White House—put it simply. They say that the only constants in life are death and taxes. That, Wilkins said, is a lie. "The only constant is death, taxes, and change."

Simple wisdom there. As the Bible says, "This, too, shall pass." This morning I staffed a panel on the imperial presidency featuring blogger Christy Hardin Smith [2], Georgetown law professor David Cole [3], and Rep. John Conyers, one of Congress's greatest warriors for the Constitution—perhaps in the entire history of the Constitution.

Conyers covered all the bases: extraordinary rendition, signing statements, the politicization of the Justice Department; but the part that lept out for me—the most intellectually original part—regarded the Supreme Court. He pointed to the infamous Korematsu [4] decision of 1944, in which the Court in a 6-3 decision sanctified the internment of American citizens of Japanese descent, simply because they were of Japanese descent. Conyers specifically cited a line from Justice Jackson's quite short dissent (which Christy Smith implored everyone to read in itself as a masterpiece in the annals of liberty; you can do so here [5]). He warned that Korematsu could well become a "loaded weapon"—a tool any future president could use as precedent to rob Americans of their liberty on mere whim.

Instead, Conyers pointed out, Korematsu ended up becoming the opposite: an anti-precedent. A wave of shame eventually washed over the judicial community; nowadays, agreeing with the plain fact that Korematsu was wrongly decided is a threshold every potential Supreme Court justice, liberal or conservative needs pass.

Korematsu, in other words, ended up contributing to liberty and justice. It became a bright line, a road no future court can ever travel down.

Of course, this court is coming close enough. But here's Conyer's hopeful thought, his this-too-shall-pass thought. What if the worst decisions of the Roberts and Rehnquist courts can come to be understood, in the bright light of hindsight, once our long national nightmare is over, as similar anti-precedents? What if the nation comes to its senses and feels the same overwhelming wash of shame at this administration's depredations of liberty?

It's not impossible. It's something, in fact, to work toward.

The conservative era is over—if you want it.