Friday, July 29, 2005

I Like this Kind of McCarthyism

Via a dissenting opinion at Powerline, I am directed to a post by Andrew C. McCarthy of the Foundation for the Defense of Democracies that gets the issue of why asking a Supreme Court nominee about important precedents is an appropriate line of questioning. Read the whole thing. Here's the best excerpt, using Roe v. Wade as the example:

If you think Roe is good law, if you think it was well reasoned, if you think it reached the correct result, then you are basically saying that you think it is proper for a handful of lawyers, bereft of compelling precedent, and without competence in dynamic and relevant disciplines like medical technology (while unable institutionally to become competent by holding hearings like Congress does), to impose their policy preferences on the American people, and thus insulate those policy preferences from the democratic process.

Unfortunately, opportunity for reasoned debate on Roe has been overwhelmed by the disingenuous rights-rhetoric of the Left, abetted by the Right’s self-defeating complicity. In the current clime, saying “I think Roe was incorrectly decided,” reduces the declarant to a caricature Cro-Magnon who would have “women forced into back-alley abortions,” as Senator Ted Kennedy (D., Mass.) slanderously said of Judge Robert Bork nearly two decades ago.

In fact, all the statement really means is that the decision whether and under what circumstances to permit abortion — like every other issue the Constitution does not speak to directly — should be in the capable hands of Americans and the politicians accountable to them, rather than the judiciary. It is baffling that, in an age of judicial excess, conservatives continue to slog away in the abortion box rather than offering a different, resonant way for people who care about self-determination to think about Roe.

I don’t much care what Judge Roberts thinks about abortion. If Roe were reversed tomorrow, there would still be plenty of abortion. But it would be regulated by the people, not the judges. I would need to care about what Judge Roberts thinks of abortion about as much as I currently need to care what Justice Ginsburg or Justice Scalia thinks the drinking age in Connecticut should be — which is to say, not at all, because it’s frankly none of their business. That’s not what we hired them for.

A while ago, I poked fun at some influential Democrats for (to make a long story short) admonishing elected Democrats not to put their principles up against their opponents' and subject Social Security reform to vigorous debate. The same principle applies here to the Republicans. Insist that Roberts answer well posed questions about important precedents--and then defend his answers to the American people against the baseless charges of ideologues.

If you believe in democracy, if you passionately believe in self-government under our Constitution, then that's how you conduct yourself as a Senator, regardless of how other Senators or nominees may have conducted themselves in the past. You win the argument, with the salutary benefit of having something to campaign on in the next election.

Besides, exactly what element of Judge Roberts' resume would lead anyone to believe that he cannot excel in a confirmation hearing?

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4 comments:

Roland Patrick said...

'Besides, exactly what element of Judge Roberts' resume would lead anyone to believe that he cannot excel in a confirmation hearing?'

You could have said the same thing about Robert Bork.

Bibamus said...

This article you quote is beyond silly. Again, I agree with the principle - that nominees should be asked about past cases - but the self-righteous overtones of this article are absolutely insufferable.

A couple of the loopier bits:

Unfortunately, opportunity for reasoned debate on Roe has been overwhelmed by the disingenuous rights-rhetoric of the Left, abetted by the Right’s self-defeating complicity.

Anyone claiming that the Left alone is responsible for the state of the public debate over Roe is fundamentally unserious. Perhaps in the mythical America inside Andrew McCarthy's head the opponents of Roe argue primarily in terms of the dangerous precedent it sets with regard to judicial authority and the proper role of the Court in the democratic process. Here on earth, opponents of Roe talk a lot more about 'saving the babies'.

Furthermore, describing the Left's position as "disingenuous rights-rhetoric" is question begging of the first order - if we are to conduct the debate on the level that Mr. McCarthy seems to want, this is the issue we must address (whether the 'rights' Roe protects are real, or in fact disingenuous) - dodging the question in this way indicates, again, that this is not someone interested in a serious debate.

In fact, all the statement really means is that the decision whether and under what circumstances to permit abortion — like every other issue the Constitution does not speak to directly — should be in the capable hands of Americans and the politicians accountable to them, rather than the judiciary.

Again more silliness - each side waxes poetic about the "capable hands of Americans" when it agrees with what Americans are likely to do with those hands. This is nothing like an argument - just pure boilerplate political rhetoric. The real test is whether you are willing to trust the "capable hands of Americans" when they are likely to do something you disagree with. And both sides play this both ways depending on what is convenient for them given the issue and the current state of public opinion. Suggesting otherwise - that the Right is somehow more pure on this than the Left - is beyond disingenuous; believing it would be naive in the extreme.

And I won't even go in to the nonsense about how the Constitution doesn't speak to abortion directly - we can have this fight when you can come back and show me the part of the Constitution that speaks directly to your right to kiss your wife.

I'm all for having a serious debate about Roe, but this isn't it.

Andrew Samwick said...

My "right" to kiss my lovely wife is protected by the capable hands of the American public. I would happily engage in civil disobedience if the NH law were ever to change.

As we discussed earlier, I think the decision to display the Ten Commandments in Kentucky courthouses should be in the capable hands of citizens of Kentucky.

And I think that we have become too lazy as a society to actually amend the constitution when amendment is called for. I would support an amendment guaranteeing most aspects of the "right to privacy" as it is now commonly understood. But I don't support the way it has evolved over the last 4 decades in the absence of such an amendment.

Bibamus said...

Are you saying that you don't believe in unenumerated rights at all? This seems at odds with both the history and the plain text of the Constitution. Madison could have written the 9th Amendment to read "for all other rights, we will ask for a show of hands", but he didn't, and probably for a reason.