Kristallnacht, Again

I am recalling a graduate course I took at the University of Chicago back in 1992 devoted to Carl Schmitt. Schmitt was the guy snapped up by Josef Goebbels in 1932 to head up the Nazi legal team. For four months we poured over Professor Schmitt’s works. Without question, Carl was a complex figure, as complex as any who served Chancellor Hitler.

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Better than anyone else, Professor Schmitt understood the political character of law. Judge Kavanaugh’s appointment to the Supreme Court reinforces the validity of this judgment. Law is political. Politics is law.

Obviously, as much as Professor Schmitt’s appointment, so Judge Kavanaugh’s appointment, is politically significant. The point I believe significant is that law — which is always politically significant — is not always obviously political. When law becomes obviously political, we have entered a different moment.

When a President can rally a political audience in support of sexual violence this marks a sea change in the political character of law; a sea change as significant as Kristallnacht, when Germans felt authorized to raze Jewish Synagogues and did so.

Yes. Law is political. Law plays parties against one another. And, yes, over the past thirty years, law has been gradually, slowly, lethargically creeping toward gender equality. We are now seeing a rebellion against gender equality. Mississippi exposes a deep crease, a breach, in the logic of gender equality. Large numbers of women doubt Professor Ford’s testimony. Large numbers of women are ready to cheer as a President mocks a victim of sexual violence.

And here we are again. It is 1932. My synagogue has been set on fire. Senators Collins and Manchin are turning their backs. Let it burn.

We have lost the political battle. It is now the day after 1932. It is now 1933. Brett Kavanaugh, the tipping point, is now installed. Now what?

Now what? Yes. Law is political. Which means that we empty into the streets, every day, every hour. We show our numbers against theirs. We drain them. 1932 is not a new normal. We cannot back down. Everything we love and live for is at stake. We must drop everything.

Ironically, the US has just become extra-judicial. Law no longer rules. Politics rules. The party that wins is critical, truly.

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