April 22, 2005
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An open email to David Brooks, in response to this article, which I found through our potty-mouth pal, The Rude Pundit.
I read your article where you say the genesis of the current power-stacking melee over judicial nominations is located in Roe v Wade, a supreme court ruling. That's a bit like saying that we should blame the existence of organized crime on the invention of money.
The current battle over judicial nominations (currently taking the form of 'debate' over whether or not Mr. Smith should Go To Washington) has its genesis in the religious right, not in the court case they despise. The Republicans have been wooing the religious right for decades, changing their politics 180-degrees, bending over backwards to get these folks to vote for anything with an '(R)' after its name on the ballot. And the current, ahem, 'discussion' is a result of *that* unfortunate truth.
You're correct about the nature and scope of this problem: We're seeing a destruction of the culture of the Senate and of limited government. But this has nothing to do with Roe v. Wade -- this is a result of unmitigated pandering by Republicans, and the Republicans' success in the last few elections (and their subsequent inability to keep their one-party government fantasies in their pants).
You are correct that moderate Republicans find themselves really hating this situation, as well they should. They should because, as Molly Ivins said, you gotta dance with them what brung ya. The religious right is out for blood, and it's not the blood of the lamb.
But to get back to your central strawman: Roe v. Wade is a good ruling. It doesn't 'invent' rights. It's not the result of 'activist' ruling. If it were those things, then you might have a snowball's chance of blaming the current fracas on the judges who made it. But it's not.
Your solution to this 'problem' would be laughable if it weren't so completely horrific. The whole point of having a Supreme Court is to decide exactly these kinds of issues. Would you say that we should have a vote on whether rulings against racially-discriminatory laws were 'good' or not? Would you really want to put legalized lynchings up for a vote? Would you, with a straight face, suggest that the civil rights of African-Americans should be decided by referendum?
This question isn't so far removed from your rhetoric as you might think. You're saying (with a straight face) that women's reproductive freedom, having been ruled a civil right, is now not worth so much any more. You're saying that a Supreme Court ruling against laws which prevent women from having sovereignty over their own bodies should be thrown out, justified *only* by the fact that there are people with political power who don't like the ruling.
You're ultimately saying that you want women's rights to be something states decide. You say the current threat of the 'nuclear option' would 'damage the cause of limited government,' but to demote the rights of women in this way would damage the cause of human rights, certainly damaging to the cause of individual liberty, which conservatives are suppose to hold dear.
But that's not what's horrific about your article, though it's certainly horrific enough. What's horrific is that this slides out of your fingers into your word processor without your even thinking about it. At least, one hopes it was an oversight.
You are feeding the fire you proclaim to be putting out.
Respectfully, PJM.
Comments (8)
I haven't read the article you respond to, but RvW is different from the whole black rights thing insofar as, whichever side of it is right, it is a human rights issue for somebody, and the jury was still completely out among the people when the court made its decision. Either a human is being killed for its parent's convenience, or the government is cracking down on a woman's right to control her own flesh. And there is precisely zero in the Constitution or judicial precedent based thereon to say one way or the other which one is right. Nine people got together in 1973, and seven of them decided one side was completely right, no room for discussion. Without constitutional precedent, which can only be argued for in this case by the most tenuous logic, that ruling effectively said that the SCOTUS can make up rights as it pleases, throwing checks and balances completely out of whack. Using roughly the same rhetoric employed in RvW (right to privacy and control over your own property and so on), the Supreme Court could establish a constitutional right to have sex with hamsters. And any attempt by the states to vote for control on hamster-banging would get shot down.
Black rights, on the other hand, were supported by a series of amendments. The courts simply failed to uphold them in at least half of the country for almost a century. That was ultimately a case of democracy working. We can talk about what rights people "ought" to have, but the whole point of a democracy is that the people as a whole decide what ought to be. If abortion should be allowed, if we as a people do not view the unborn as human, we're big people. We can decide for ourselves. What should not happen is having a pitifully small minority sit on the issue and refuse to budge, hiding behind the constitution they violate by doing so. That's just a crock.
Maybe the SCOTUS has been pandering to the right in recent years, though I haven't noticed. They didn't take long to reverse their position on gays in the scouts, and Scalia has been consistently in the minority. Anyway, there are two sides to the argument, and we need to have a real discussion. Democratically.
The religious right scares the hell out of me. Why do we have to have our own Taliban? *sigh*
As for abortion... well, if I had a parasitic being feeding off of me then I would consider it my right to get rid of it if I deemed necessary.
Yeah, I read that one. I love love LOOOOVE the Rude Pundit. Thanks for turning me on to him a while back.
Ramen, we had that discussion when the various anti-abortion laws were first enacted. The function of the supreme court is to figure out if laws enacted through such 'discussion' are constitutional or not. That's why they exist. The supremes said the laws were unconstitutional.
And the irony is that this idea that we should democratically second-guess the supreme court does more damage to the country than legalized abortion or an end to fillabuster ever will.
I think Brooks doesn't see the larger picture he's painting himself into.
Very much on point...but Brooks does have all REpublican friends. And to cultivate those friends you can only have them by drinking the same kool aid...
But if you don't require that their "constitutional" discussions be justified in any way, shape or form by the constitution itself, which RvW was not, you're essentially giving the SCOTUS a carte blanche to say whatever it wants about anything, and given that it's a complete iron-plated biznatch to overturn anything they say, that's giving a ridiculous amount of power to a single branch of the government. There is nothing democratic about a group of appointed officials who hold their position for life dictating what laws are acceptable on a whim. And there is nothing in the constitution about either the humanity of the unborn or the biological aspects of property rights. They just decided what the truth ought to be and tacked on a pitifully flimsy "constitutional" justification. In doing so, they also neatly smothered all possible debate on the subject, ensuring that now, thirty-odd years later, the issue is still undecided and preserved in its current state only by judicial fiat.
'Whim?' 'Judicial fiat?'
You mean COURT RULINGS??
Look, there are people who believe that blacks and/or women shouldn't have rights guaranteed by court rulings. There are people who believe anti-miscegenation laws shouldn't have been overturned.
And I count myself among people who disagree with the notion that political contributions by corporations counts as protected speech, as ruled by the courts. But rather than attack the courts as eeeeevil and 'whimsical,' I say that there's a lot of work to be done.
What Brooks, and you too, apparently, seem to be saying is that it's more important to get the outcome you desire than to preserve the institution of checks and balances. Ironically, this is exactly the sort of thing you seem to be accusing the supremes of, WRT roe v. wade.
What the bloody...dude, the adjective "constitutional" implies that an idea is supported by the constitution, or endorsed, allowed, what-have-you. Similarly, "unconstitutional" means an idea violates the regulations set down by the Constitution. Until such time as there is an amendment made on the matter one way or the other, abortion rights is neither. The Constitution says squat about the subject. Nothing at all. Or about anything even vaguely related to it. The "justification" contained in RvW was a very hazy extension of the idea of rights to privacy, which neatly dodged the objection made by the pro-life side that there is a question of human life being wrongfully terminated. That objection was not answered, only assumed to be false and a different justification used. If the Supreme Court can declare antiabortion laws unconstitutional by such means, with no control, there is nothing to stop them from declaring anything "unconstitutional," up to and including picking one's nose or using the word "foment." The immense tenacity given the SCOTUS by our constitution is only reasonable if their power is limited to traditional judicial review as established by Marbury v. Madison. E.g., the nineteenth amendment grants women's rights on some level at least, 13-15 prevents racial discrimination. Those have precedent. Now if you would kindly stop assuming that everything I say is part of a nefarious plot to conquer the uteruses of America, and admit that some outside chance exists that my arguments might be concerned with the actual point they claim to address, I'd appreciate it.
Comments are closed.