Friday, January 13, 2006

The judiciary and the Big A

Note: This was originally part of the previous post on the Alito nomination, but it seemed better to separate it out.

For both sides of American politics, abortion is the key issue. In fact, a usable zeroth-order theory of politics in the US is that abortion is the only domestic issue. (In this, it resembles nothing so much as slavery circa 1850.) One reason for this central role is that abortion is emblematic of a much wider struggle over government.

Those on the left seem to believe that the Supreme Court is a kind of "trump card" in the political game. If you can get the Supreme Court to rule on an issue, then you don't have to go through the bother of persuading a majority of the voters, or getting a bill through Congress, or even really defending a position in the public arena. After all, the voters are often idiots, or worse. (That goes double for members of Congress.) This is why so many of the activist organizations on the left use the courts as the centerpiece of their efforts.

Some on the right no doubt think the same thing. But a lot more of them think that this use of the judiciary to trump the political process is harmful and wrong and fundamentally anti-Constitutional. The members of the Supreme Court are appointed for life and their decisions cannot be appealed. This is only consistent with democratic self-government if the Court is very limited in the scope of its legitimate powers.

So the left sees Roe v. Wade as the prototypical example of a very desirable result that would have been impossible to achieve by democratic means. The right sees the case as an anti-democratic excess that cannot be justified by any reasonable reading of the actual Constitution or the legal history of the US -- a striking example of judicial tyranny. This is a situation, in other words, in which the Republicans are the democrats.


Here is roughly what President Bush has said about abortion. I am against abortion. But the country does not now have the moral consensus to ban it. So I think that we should do two things. First, I think that we should find ways to encourage a culture of life, and seek to limit awful things like partial-birth abortion. Second, I think we need to rein in an out-of-control judiciary by appointing people to the bench who believe in interpreting the law rather than making new law.

His opponents say that this sort of moderate-sounding rhetoric is just a disguise for fundamentalist anti-abortion extremism. When he is talks about a philosophy of judicial restraint, that is just a code phrase for reversing Roe v. Wade at the earliest opportunity. When he says a culture of life, he means The Handmaid's Tale. And you can bet that every single Bush nominee to the federal bench, however neutral in appearance, knows the secret handshake of the anti-choice cabal. (They teach you this in the Federalist Society, I gather.)

But what if Bush really means it? What if, after years of reflection and experience in politics, this is really pretty much what he thinks about the subject? What if he really does think that the most serious danger to our democracy is judicial imperialism? Maybe he actually does believe that if we can get a handle on this basic Constitutional problem, then the normal political process and the good hearts of the American people will take care of the rest -- not neatly, not without lots of shouting, but tolerably well in the long run.

I think that the left is unable to accept Bush's sincerity on this because they no longer believe that the law is anything but power politics carried on by other means, and so they cannot conceive that anyone would really hold such a stupid opinion. Bush -- or those who pull his strings, like Cheney and Rove -- must therefore be dissembling. QED. Even if you don't go that far, it is true that the stances of politicians merit some skepticism. Politicians like to stake out popular positions, and they will cloak radical views with harmless-sounding language. And Bush is a first-class politician.

Yet the President's stated opinions on abortion pretty nearly match my own, which I know are held honestly and which are the result of much reflection. In fact, Bush has expressed these ideas and explained them with a care and a constancy that I find admirable. I see no evidence from his record of policy and judicial appointments that he is pursuing any hidden agenda. His decision about federal funding for embryonic stem cell research, for instance, is about as moderate as you can get in such a sensitive subject. (He did not ban any research funded by non-federal sources, and he allowed money for non-embryonic stem cell work and for work on established cell lines. His policy is actually more permissive than the one prevailing during the Clinton administration. What would be more moderate than this? "Let 'er rip, and here's the cash"?) His judicial appointments have, as far as I can tell, all been people who have long expressed exactly the kind of judicial philosophy that he espouses.

So my conclusion is that President Bush means what he says about abortion, the culture of life and the role of the judiciary. It is a serious opinion that over the long run has a chance of actually persuading serious people. His opponents, if they hope to prevail in the great debate, would be well advised to engage Bush's actual ideas, rather than their own cartoon versions of what they think he really thinks. It is proverbially foolish to bring a knife to a gun-fight. And in the long run, it is equally foolish to bring an empty and alarmist rhetoric to a serious war of ideas.

1 Comments:

Anonymous Ron G. said...

Those on the left seem to believe that the Supreme Court is a kind of "trump card" in the political game. If you can get the Supreme Court to rule on an issue, then you don't have to go through the bother of persuading a majority of the voters, or getting a bill through Congress, or even really defending a position in the public arena. After all, the voters are often idiots, or worse. (That goes double for members of Congress.) This is why so many of the activist organizations on the left use the courts as the centerpiece of their efforts.

While this may be true for a minority of activists, I think there is a more subtle point here. Suppose you believe in "right and wrong" and that right needs promoting and wrong needs discouraging--or fixing, as it were. And, because you believe in right and wrong, you also know that a majority can be wrong and a minority, a small minority--even a single person!--can be right on a particular issue.

At some point you probably have grasped that our political system is basically about majority rule and that two things are apparent. First, the majority doesn't always get it right. Second, the political process reeks of compromise and wheeling/dealing to attempt create majorities. When you find out that School Board member Jones is only supporting the change you know is right--Proposition A--because he's made a deal with School Board member Smith wherein Smith supports Jones' pet project, you recognize that the rightness or wrongness of Proposition A somehow doesn't matter to Jones. How can you leave this important issue up to a system where its rightness or wrongness seems almost irrelevant in the decision making process--a process that feels dirty and manipulative and conniving.

The one area of government that (on the surface) appears to be all about right and wrong, that appears to work in a way that even a single person who is right can prevail over a majority who are wrong, that appears to be in structure a logical process of discovery of what is right and wrong--is the court system. So seems to me that an idealist would naturally pursue a legal solution to a problem instead of a legislative solution to a problem--not as a "trump card" in a political game, but because it makes sense to him and offers more of a sense of integrity to him.

5:48 PM  

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