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Sunday, August 21, 2005

Civil Politics and the Supreme Court

This Sunday’s Washington Post provides a good summary of the background and views of Supreme Court nominee John Roberts. It starts out by briefly describing his background.

Roberts attended high school at a prestigious private boarding school in the Midwest. He then graduated from a top Ivy League college and went on to clerk for Supreme Court Justice William Rehinquest. After this, he was one of a cadre of young conservatives who went to work for the Reagan Administration. As a special assistant to Attorney General William French Smith, he often was more conservative in his writings and opinions than his bosses. At that point in his life, he was one of the true believers in the Reagan Revolution. He was definitely part of the group who came to Washington to change the direction of the country.

The portrait painted of him is not that different from either the president who just nominated him or the other members of the conservative elite of the eighties who practiced the politics of resentment. Indeed, this elite mightily resented the barbarians at their gate who threatened their sense of entitlement and privilege by demanding social justice and equal opportunity.

These were the young men who looked at blacks, women, and other disenfranchised groups and saw not a democratic movement to redress past injustice but a mob seeking to crash the gates of privilege where they didn’t belong.

To focus on how Roberts views Roe v Wade to the exclusion of the total picture would be an incredibly short sighted mistake because there are even more troubling aspects of this man’s vision that will affect the lives ordinary Americans as much as Roe v Wade will.

John Roberts spent his whole professional life, with a very few notable exceptions, protecting and extending the rights of the privileged few at the expense of everybody else.

He wrote legal briefs on how to limit access to the courts to prevent groups from suing for discrimination. In fact, he applauded decisions limiting affirmative action and preventing the extension of opportunities to blacks and women. This man of so much privilege opposed laws that he claimed designated those society had often left behind as “privileged groups,” and fought against what he called “reverse discrimination” of whites. By the way, I do oppose genuine reverse discrimination or any discrimination that harms an individual. But too often this opposition was just a ploy to defend the privilege of the elite at the expense of those who had traditionally been excluded from true equal opportunity.

Also, even on Roe versus Wade, Roberts’ personal opinion of abortion rights are not as important as the legal views that helped him to arrive at his opposition to it. In one memo, he wrote about “the so called right to privacy…” Much more important than how he personally feels about abortion is his legal view of the constitutionally protected right of individual privacy. If indeed he does not think such a right exists – as many other strict constructionists don’t – that will impact not only a woman’s right to an abortion, but her right to even use contraceptives. It will impact how he views the rights of two consenting adults when it comes to certain sexual practices. This should be troubling to all gays.

It has been pointed out that he once helped coach some lawyers on a gay rights case. And that is encouraging. But if he truly believes there is no constitutional right to privacy, that legal view could spell trouble for other gay rights cases.

He also favored court rulings that limited the rights of convicted criminals to the appeals process. Given how many men and women on state death rows have recently been exonerated by DNA evidence, do we really want a Supreme Court justice with a bias against the criminal appeals process and one who is deferential to prosecutors, as he has been on the federal circuit court?

These are troubling aspects of the man’s viewpoint to consider during his Senate Confirmation hearings.

And here’s something else that should be troubling to all progressives. Democrats, who may have already resigned themselves to losing the battle over John Roberts’ nomination, aren’t planning to fight it much at all. So far, there have been few commercials on either side of the battle. And whatever opposition may just be perfunctory battles over the release of Roberts’ writings and not a real fight over his legal and personal viewpoint.

That’s the wrong tactic.

As I’ve said before, I don’t believe Senate Democrats should break their previous agreement not to invoke the filibuster. Yes, I realize that means Roberts will ultimately serve on the Supreme Court. Because we are the minority, short of a major scandal (which I don’t foresee) the Democrats will lose the straight up or down vote when his name comes up for a vote.

And that’s okay. Senate Democrats should both honor their previous agreement and allow the straight up or down vote on this particular nominee.

They don’t have to succeed in preventing Roberts from reaching the Supreme Court. But they have to put up a good fight that explains to the American people what it is they oppose, why they oppose it and (even more important) what it is they stand for instead.

In a civil and professional manner, they must be the loyal opposition and make their case to the American people that Roberts may be the most decent man in the world. But his values are not the right values for this nation.

This is the great opportunity for the Democrats to have the discussion they say they want on values, ours versus theirs.

To do this successfully, they have to be willing to spend money and run ads that explain their differences with the Republican Party. They need to illustrate why their values are more in step with the mainstream than those of their Republican opponents.

In addition, they ought to put some of their moderate Republican colleagues on the spot. Are those Republicans such as Lincoln Chafee, Olympia Snow, Susan Collins, and Arlen Spector true moderates? What does being a moderate Republican mean? How valuable is it for feminists and blacks to support those Republican moderates who say they are for abortion rights or affirmative action but then support their own party’s extremists in what is one of the most important votes – that of a Supreme Court judge?

Finally, no Democrat who truly opposes John Roberts should vote for confirmation just because he thinks it’s a done deal or because he thinks it’s a way to restore civility to the Senate. It isn’t

Civility is not rolling over and playing dead on important issues. It’s standing up for what you believe with dignity, restraint and respect. I think it’s possible to oppose the confirmation of John Roberts and to build a reasoned and logical case against him without attacking the man personally. It is possible to respectfully disagree with somebody and to politely decline to support his nomination.

The Democrat who does that will get the attention and respect of his or her fellow Americans and will strengthen his or her party and his or her country.

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