Clinton passed test on racism many failed

One of the problems with the US is that too few people have a sense of the grotesque. I was there last week when the Senate formally opened the impeachment trial of President William Jefferson Clinton. The epic moment, full of seriousness and formal gravity, began with the Senate's oldest member and president, Strom Thurmond, a Republican from South Carolina, presiding.

Thurmond then handed over the chair to the Chief Justice, William Rehnquist. All the talk was of law and justice and history. However, it would be hard to find in any liberal democracy a pair of high officials whose eminent presence at such an occasion was such a transparent charade.

Bill Clinton's crimes, such as they are, are about the alleged undermining of public trust in the administration of justice. The idea of a lawbound society has been tested severely throughout the short history of the US. But undoubtedly the biggest test was the survival of institutionalised racial discrimination, especially in the old south, for a full century after the Civil War had supposedly inaugurated an era of racial equality.

Segregation, oppression, humiliation and the denial of basic political rights were the lot of millions of US citizens. Those conditions were imposed on them because of the colour of their skin. Two of the many white intellectuals who upheld and argued for that system in the old south were Thurmond and Rehnquist.

When he was governor of South Carolina in 1948, Thurmond ran for President on a "states' rights" (code for "white power") ticket, advocating "segregation of all the races". In 1964 Thurmond stumped the south for the blatantly racist presidential campaign of Barry Goldwater (as, of course, did the independent counsel Kenneth Starr). Ever since, in his deplorably long political career, Thurmond has continued to appeal to the racial prejudice of an electorate which has rewarded him with an eternal place in the Senate.

Before he began his political career, Thurmond was a circuit court judge. In that capacity, in 1941, he presided over the trial of a 17-year-old black tenant farmer called Samuel Osborne.

This man's basic crime was that he refused to work on a Saturday when the white plantation owner, William Walker, demanded his presence. Boss Walker, enraged by Osborne's refusal, stormed over to his shack carrying his .32-calibre pistol and the club with which he regularly beat his tenants. Osborne was sleeping and woke to find Boss Walker standing over him with a pistol. He reached for his own shotgun and fired, killing Walker.

Even in the south and even in the 1940s, Osborne was entitled to be tried by a jury of his peers and to rely on his right to self-defence. The Supreme Court had ruled just a year before the trial that the exclusion of blacks from juries was unconstitutional. Yet Thurmond allowed an allwhite jury to try Osborne. He failed in his summing up to mention the right to self-defence. And when the jury duly found Osborne guilty, he sentenced him to death.

This was one of the main sources of Thurmond's popularity and one of the achievements which impelled him towards the governor's mansion a few years later.

A decade later, Rehnquist was a brilliant young clerk for a member of the Supreme Court, Justice Robert Jackson. When the court was hearing arguments about the racial segregation of schools in Brown v the Board of Education (generally agreed to be one of the most significant cases of the century), Rehnquist wrote a memo for his boss. The central legal issue was whether the Supreme Court should strike down a judgment it gave in 1896, in a case called Plessy v Ferguson, upholding the idea of segregated transport facilities, schools, toilets etc.

"I realise," wrote Rehnquist, "that it is an unpopular and unhumanitarian position, for which I have been excoriated by `liberal' colleagues, but I think Plessy v Ferguson was right and should be reaffirmed." He was, in other words, in favour of the maintenance of institutionalised racism, of black people being forced to take a few seats at the back of the bus, of black children being confined to separate, and invariably inferior, schools.

He felt, as he wrote, that it was "about time the [Supreme] Court faced the fact that the white people of the south don't like the coloured people". Given one of the starkest tests of belief in basic legality, the upholding of the equal rights of all citizens, he failed miserably.

Nor can this be written off as a folly of youth. Rehnquist went on to work as the Republican Party's director of what was euphemistically called "ballot security" operations for elections in Phoenix, Arizona (home base of Goldwater), between 1958 and 1962. This was before the civil rights movement had secured the Voting Rights Act, and when white racists were still able to use "legal" devices to stop blacks from voting.

"Ballot security" was the Orwellian term for this systematic ballot-rigging. According to the federal prosecutor sent to monitor the harassment of minority voters in Phoenix during the election of 1962, the principal source of such problems was Rehnquist.

Rehnquist's period as Chief Justice has been marked by a consistent willingness to roll back the gains of the civil rights era. He has led the conservatives on the court in a series of decisions which have weakened the force of the Brown v the Board of Education decision which he so strongly opposed in 1952.

Most recently, Rehnquist and his colleagues heard a legal challenge to a black student scholarship programme at the University of Maryland. The programme was aimed at tackling a situation summed up by the US National Research Council as one in which "after the 1970s, the college-going chances of black high school graduates have declined and the proportion of advanced degrees awarded to blacks has decreased".

Rehnquist, however, found the University of Maryland's scholarships for black students to be unconstitutional, and they were struck down.

In the 1960s Thurmond, Rehnquist and the whole system which upheld legalised apartheid in the south were beaten. They were beaten principally by blacks themselves, by the men and women who were murdered, kicked, batoned, spat upon, imprisoned and insulted for having the cheek to demand equal citizenship.

Yet young southern, white politicians also played a role in helping to construct a democratic south. Bill Clinton was one of them. Whatever else may be said of him, he is not a racist. His commitment to legality passed a test which Thurmond and Rehnquist and the whole confederacy of Clinton-haters in the deep south failed so ignominiously.

Yet lying about sex is a high crime and misdemeanour and, if the President gets away with it, justice and legality will be fatally undermined. Running and supporting a system designed to deprive million of citizens of their constitutional rights is principled conservatism and, if you get away with it, you may get to be chief justice and run the trial of the century. Who says Americans don't appreciate irony?