I’m starting to feel weary and gun-shy about political discussions in the public sphere (among bloggers or otherwise).
It feels to me that so few people are stopping to take a deep breath, look at issues from several angles, think about first principles, likely outcomes, the constraints on the possible. Even commentators that I’m generally in sympathy with are precluding any discussion besides strict agreement with their own take on matters.
I’m really feeling this with the Roberts nomination and the related discussion of Roe vs. Wade. Yes, I found the head-fake to Clement deplorable: a petty bit of political mockery from the inner cirlces of the Administration, a “hah-hah, you thought maybe for once we’d actually try to play to the center! Hah-hah!” Yes, this is about trying to get the Supreme Court to overturn much of what it has accomplished in the last twenty years, which makes me sad for a variety of reasons. Yes, I’m concerned about the threat to Roe vs. Wade.
But at the same time, here’s some other things on my mind.
1) Do we really want to be in the position of saying that we will oppose a candidate who has great qualifications for the Supreme Court strictly because of his apparent legal and political ideology? There’s only one person on the current Court who I think is straightforwardly a blemish on the institution, and that’s Thomas, who is clearly not qualified and who doesn’t even have a vague hint of a judicial temperment. Even Scalia was an intellectual asset of sorts before he started going off the religious deep end and cutting his originalism to fit instrumentally partisan ends. I think the ideal Supreme Court should have ideological and philosophical pluralism, as long as all of its members are intelligent, knowledgeable and persuadable, capable of adjusting their views in any particular case based on the soundness of the arguments presented to them. I understand that the arguments against using a “litmus test” are offered cynically by many on the right (and the culturally conservative right isn’t even pretending any longer that they don’t have their own litmus test). At the same time, I’m always thinking about where we want to be as well as where we are, and where we want to be, I think, is that the Supreme Court should have a different ethos of selection than other branches of government. I want to vote for Congressional representatives who will speak for my views on the issues, and a President who will lead in a way consistent with my political values, but I don’t want the same direct correspondence between my own political views on particular issues and each and every Supreme Court justice. Indeed, if we value the Warren Court’s legacy, that’s exactly what we’re saying.
2) That’s all pretty abstract. Let’s get down to the real deal. Do you think that there is any way in hell to stop the confirmation, barring the revelation of some dark secret about Roberts? Somebody tell me how the opposition pulls that off. No, don’t tell me to get angry, demonstrate, write letters to my (avowedly and inflexibly Republican) Representative or my (batshit insane and wimpily moderate) Senators. Not unless you can tell me about the unknown terrain between getting! really! angry! and “blocking the nomination with the result that a more moderate person is nominated next time”. So if the nomination isn’t going to be stopped, what should it be about? How about a longer-term strategy where the implications of the shift in the Court are made clear to the American public, where the Democrats in the confirmation process set themselves up as the reasonable guardians of American consensus as opposed to the irresponsibly partisan fringe-elements dominating the Republican Party? And so on: all things which seem to me necessarily preclude an apocalyptic, fight-to-the-finish, junkyard-dog strategy for opposing the Roberts nomination. There’s some consensus on the left that the longer-term strategy is the way to go, but it’s often followed by advice to hit Roberts himself hard, or to be fierce in the hearings, and these are incommensurable.
3) On Roe vs. Wade. Amanda Marcotte at Pandagon is unsparing: she says drop the “horseshit argument” that securing the right to choose abortion is going to have to be conceded back to state legislatures. There’s a lot of opinion behind her on this point. It’s an argument that was newly galvanized by Benjamin Wittes’ article “Letting Go of Roe” back in the February 2005 Atlantic Monthly.
I think that Marcotte and others are right about the consequences of accepting Wittes’ argument: there will be some states in which a choice that many of us regard as an expression of a larger right to privacy and self-ownership will be denied to women. In practical terms, it will be denied in particular to poor women who lack the resources to travel across state lines. I agree that if you see choice as part of a fundamental right, accepting that it is not a universally guaranteed right is extraordinarily painful.
But Wittes’ argument is not “horseshit”, and it’s not “looking for a way out of the fight”, both cheap responses to an important debate that we’d better have now in a much fuller and more mutally tolerant fashion. Wittes observes that centering the debate on Roe vs. Wade has prevented those of us who believe in choice and in the right to privacy and self-ownership from securing that right either constitutionally (with an amendment) or through state and federal statutes. We’ve put all our eggs in the Supremes’ basket. More importantly, Wittes is right, in my opinion, to note that our reliance on Roe has kept the cultural conservatives from having to actually shoulder the political cost of passing specific statutes that take away a right that the majority voting population of most states supports, from having to actually do something that will have concrete consequences in terms of the everyday lives of most Americans.
You could legitimately object that Wittes’ argument implies that we should never rely on the Court to do anything, in fact, that all rights should be secured by statute. Should we overturn Brown vs. the Board of Education, too? But this goes to the deeper heart of the abortion issue. The fact is that the Court’s civil rights decisions were, first off, supported by a wave of legal and political reforms. But second, they were supported by a broad and abiding moral and cultural consensus across the United States. The glorious triumph of the civil rights movement was that it simultaneously forced the political order to abide at long last by the guiding principles embedded at its foundations and it made white Americans who had not wanted to see or know or truly care about racial inequality to at last care, to recognize how far the country was from a minimal realization of its highest ideals.
Abortion has simply never achieved the same status. The right to privacy and self-ownership is supported by a relatively wide social consensus, but that consensus peels away significantly around abortion. Yes, at least some of the opposition to abortion is a reactionary, unacceptable opposition to the wider right of privacy, and some of it is unmistakeably motivated by a desire to control women, or to discriminatorily deny them a general right. Some of it is driven by the same kind of proxy exportation of fundamental social and cultural conflicts that appears in debates over gun control, free speech rights, and so on, where abortion is just a synecdotal device expressing a deeper cleavage. But some of the separation of abortion from the wider right to privacy is driven by an authentic if also ambivalent sense that abortion is a place where the right to privacy and self-ownership gets authentically complicated. Complicated because a child is a rights-bearing entity in its own right and because children, even in utero genuinely involve more than one person’s hopes, fears, wishes, desires and rights. Any argument on behalf of choice has to take that messiness and the unease it generates seriously, and that’s something which those of us who support Roe didn’t do for a long time.
We even have to take the more obdurate or extreme opposition seriously in that it exists and it persists. There was for a long time an assumption among supporters of Roe that the Court’s protection for the right to choose would eventually, by osmosis, create a consensus, that the opposition to Roe had the same archaic and self-evidently backward character that the opposition to civil rights did. That history would dispense with the opposition to choice, and that all we had to do was keep strong and organized amongst ourselves. The folly of that approach has been demonstrated, and I think with more than just abortion. The force of social reform coming out of the 1970s became far too dependent upon guarantees of legal, political or institutional power, far too dependent on a model of enforcement. At a distant remove, that’s what drove speech codes in universities: the mutating, growing belief that changing what people think, producing new consensus views, could be done through an enforcement model rather than through seeking persuasive dialogue with people unlike ourselves. Because persuasive dialogue exposes, requires concessions, is dangerously contingent in its outcomes.
That’s all high-toned talk. So let’s switch gears a little on Roe to practical matters. It’s pretty clear it’s going to be overturned sooner or later, either in total or as good as such.
So then what, if it’s just “horseshit” to talk about other political pathways to securing the right to choose for as many Americans as it can be secured for? Does the campaign for the right to choose in Ireland curl up and die because they don’t have Roe vs. Wade to begin with? You work with what you got. Go to the barricades for Roe if you like, but if you don’t have a Plan B, then don’t spit on the people who do. If you can’t tell me how you actually intend to keep Roe from being overturned beyond getting angry and demonstrating and all that, and you don’t want to talk about the political alternatives, how committed are you really to the right to choose or the wider right to privacy from which it derives?