Casualty of Capitalism

Exiled into Wilmington, Delaware by virtue of corporate layoffs. (Note: Unless otherwise stated, all photos on this blog are Copyright 2005, Michael Collins, and cannot be used without permission.)

Location: Wilmington, Delaware, United States

Graduate of University of Maryland School of Law; University of Maryland, College Park (Economics/Political Science).

Thursday, April 21, 2005

What Roe Hath Wrought on Capitol Hill

David Brooks has an interesting theory about how Justice Harry Blackmun's Roe vs. Wade opinion in the 1970's has brought us to the bring of "nuclear" war in the Senate.

Religious conservatives became alienated from their own government, feeling that their democratic rights had been usurped by robed elitists. Liberals lost touch with working-class Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views. The parties polarized as they each became dominated by absolutist activists.

Unable to lobby for their pro-life or pro-choice views in normal ways, abortion activists focused their attention on judicial nominations. Dozens of groups on the right and left have been created to destroy nominees who might oppose their side of the fight. But abortion is never the explicit subject of these confirmation battles. Instead, the groups try to find some other pretext to destroy their foes.


Majority parties have often contemplated changing the filibuster rules, but they have always turned back because the costs are so high. But, fired by passions over abortion, Republican leaders have subordinated every other consideration to the need to overturn Roe v. Wade. The Democrats, meanwhile, threaten to shut down the Senate.

I know of many senators who love their institution, and long for a compromise that will forestall this nuclear exchange. But they feel trapped. If they turn back now, their abortion activists will destroy them.

Juan Non-Volokh, an anonymous blogger at the Volokh Conspiracy, offers a soft rebuttal to Brooks:

Brooks is making a serious point, but I think it's a mistake to think the war over judges is all about abortion. There are plenty of other sensitive issues that judicial decisions have removed from the democratic process, and plenty of pro-choice Republican Senators who seek to end Democratic obstruction. It is also important to note that overturning Roe, by itself, would not be a pro-life victory. All it would accomplish is returning abortion policy to the states, many of which would never severely restrict, let alone prohibit, the practice.

I think they both make good points. Abortion, obviously, is a factor in every judicial nomination that comes before the Senate. Since I can remember, "litmus test" has been part of the vernacular whenever the issue of judges and potential nominees is brought up. I agree with David Brooks in that whenever an popular issue is stolen from the people by the courts, and the judgment alienates one or the other side, the bitterness is hardened and a feeling of helplessness ensues. A person who feels wronged by an ironclad judicial outcome, particularly before the debate has matured, cannot feel anything but powerless when the only remedy is the pipe dream of a Constitutional amendment? This is especially disempowering in a democracy, a place where a premium is put on debate and compromise, and the government is purported owned by the people.

But on the issue of Harry Blackmun's role in using the nuclear option, Juan Non-Volokh makes a good point. Much of it is pure partisan politics. I think the Senate is here almost as much because of the treatment of Democratic nominees under Clinton, as from abortion itself. You can also add the remaining bitterness from Clinton's impeachment trial. In many ways, the Republicans made their own bed.

The abortion issue has destroyed many babies, familes, and political careers. I think it's high time the court returned this issue to the people to decide. I am an ardent foe of the practice, but also a realist as far as the implications of overturning Roe go. I look forward to the debate in the states. Debate means it's the people's issue again, for one thing. And I think the outcome will be far more satisfying for most if the people get to decide its legality. Personally, I won't be satisfied until legalized infanticide is outlawed, but for our political process, I would consider a mere vote on it a victory for democracy.


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