While the headlines trumpet dramatic change in federal and New York State government, the experience on the ground for city residents in terms of civil rights issues may be more one of tone than of concrete legislative change. The new more pro-civil rights Democratic majorities in Congress still have a Republican president ready to veto any diminution of the Patriot Act, which civil libertarians find problematic. New Yorkers may soon be able to check a book out of the library without fear that the record will be handed over to the authorities, but there is little evidence that there will be a general relaxation of the heightened restrictions.

A Surveillance Society

The Democratic Congress can put the brakes on further incursions of the Bush administration into civil liberties, but we may discover how difficult it is to recover long-held rights that were cast aside in the name of security. New Yorkers have come to accept a surveillance society where almost every public move is videotaped. Random bag searches by the New York Police Department at subway entrances--instituted after the July 2005 London Underground terrorist attacks--were upheld as constitutional by federal courts here. The New York City Council Speaker, Christine Quinn, a Democrat with roots in progressive Chelsea, defends her recent campaign on nightlife safety as satisfying the concerns of civil libertarians. But some advocates have challenged the constitutionality of being taped and carded every time they go to a club.

Less Than A Civil Rights Agenda In Albany

New York’s new Governor Eliot Spitzer has an overwhelmingly Democratic Assembly, but the State Senate remains in the hands of a Republican majority most of whose members have been cross-endorsed by the Conservative Party.

The only member of the Republican majority to support opening marriage to same-sex couples, Nick Spano from Westchester, looks to be narrowly losing his Senate seat to county legislator Andrea Stewart-Cousins who does not explicitly support such a bill, but has promised to vote for it if it makes it to the floor--which Majority Leader Joseph Bruno has promised it will not. (Unlike Congressional Democrats, the State Senate Democrats did not make much of an effort to win a majority in their chamber with their leader, David Paterson, off running for Lieutenant Governor.)

Civil libertarians may just be waking up to the fact that Governor-elect Spitzer does not share their agendas. Though during the campaign Spitzer announced his support for opening marriage to same-sex couples, he founded the Center for the Community Interest, which, as its Web site indicates, "supports common sense policies that strike a balance between rights and responsibilities, and defends those policies when civil liberties demands are carried to unreasonable conclusions that hurt or endanger others, or erode our shared quality-of-life." He is also a supporter of the death penalty and wants rape suspects tested for HIV despite the objections of public health authorities who counsel rape victims to take drugs to stave off HIV immediately rather than wait for an unreliable test result from someone who may or may not have committed a crime.

The other problem for civil libertarians at the New York State level is that after 12 years as governor, George Pataki has finally managed to install a conservative majority on the state’s high Court of Appeals whose members serve 14-year terms or until they reach age 70. Just as Pataki had to deal with a court dominated by Mario Cuomo picks who were progressive, Spitzer--even if he were inclined toward a more liberal judiciary--will not see a majority until towards the end of his second term should he win one. Spitzer can have more impact on the mid-level Appellate Division where judges sit for five-year terms.

An Unchanged Judiciary

George Bush is still making all the appointments to the federal courts and has two years to solidify a conservative majority on the Supreme Court should one of the current Justices, several of whom are no spring chickens, die or retire. The federal judiciary is one area where the election of a Democrat-controlled Senate can put the brakes on the rightward tilt.

President Bill Clinton, a centrist Democrat to begin with, could not balance the Reagan-Bush, Sr. appointees from the right like Antonin Scalia and Clarence Thomas with leftist judges because for most of his tenure, Republicans controlled the Senate. Clinton opted for relative moderates such as Stephen Breyer and Ruth Bader Ginsburg. If the Democrats in the Senate do nothing else, they should be able to thwart the more radically conservative Bush appointees to the bench.

Rep. Jerry Nadler (D-West Side and Brooklyn) will become the new Chair of the House Judiciary Committee’s subcommittee on the Constitution and promises at least to get hearings going on civil rights and liberties concerns that the Republican majority refused to.

But civil liberties were not high on the list of issues that Democratic candidates won on November 7th. It remains to be seen whether the new majorities will take bold actions to restore civil liberties compromised under the Republicans or settle for some symbolic victories in their drive for the center that Senator Hillary Rodham Clinton exhorted them to govern from at her re-election party.

Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.