Column 2005-4-21 Commentary

With a column as completely devoid of any redeeming characteristics as this one, it's hard to know where to begin. (Actually, that's not true: begin with Michael Berube.) Ok, so Brooks does get one thing right: he makes the correct argument for not disposing of the filibuster. But the rest of the column ranges from arguments that are stupefying in their idiocy to outright lies. Perhaps the best place to start is with this claim: "Unless Roe v. Wade is overturned, politics will never get better." If Brooks really believes this, he is probably certifiably insane. Can he really think that the radical Christian right will just quietly die back and stop agitating if Roe v. Wade vanished from the political scene? The obvious consequence of such a move would not be to send the abortion question back to be discussed civilly, or even uncivilly, as would undoubtedly be the case, in state legislatures. Instead, the radical Christians would immediately propose a bill banning abortion in Congress. It would pass the House and face a filibuster in the Senate, and if Brooks thinks there is a lot of pressure on the Republicans to abolish the filibuster to get a handful of judges confirmed, consider the pressure if the result of the nuclear option would be the far more tangible result of a bill banning abortion. And, of course, if the bill gets passed, it would immediately go through a court challenge which would probably end with it being struck down, leaving us in essentially the same place. If the bill doesn't pass because of the filibuster, the focus would shift briefly to the states, until Massachusetts or one of the usual blue-state suspects passed a law allowing abortion, which would immediately face a court challenge. Once it makes it to the Supreme Court, this law would probably be upheld, and then, guess what, we're in exactly the same position again. Striking down Roe v. Wade would change nothing in the abortion fight.

But the real problem with this idea is that the stakes have moved beyond abortion. The Christian right will no longer be satisfied with simply overturning Roe v. Wade. Consider the April 7-8 conference on "Confronting the Judicial War on Faith", held in Washington, D.C, and attended by many prominent conservatives: "two House members; aides to two senators; representatives from the Family Research Council and Concerned Women for America; conservative activists Alan Keyes and Morton C. Blackwell; the lawyer for Terri Schiavo's parents; Alabama's "Ten Commandments" judge, Roy Moore; and DeLay, who canceled to attend the pope's funeral." Phyllis Schlafly, another prominent attendee, said that Supreme Court Justice Anthony Kennedy's opinion overturning the death penalty for juveniles was grounds for impeachment. One Edwin Vieira said that his "bottom line" for dealing with judges was taken from Stalin: "[Stalin] had a slogan, and it worked very well for him, whenever he ran into difficulty: 'no man, no problem.'" The full quote, of course, is "Death solves all problems: no man, no problem." And don't think Vieira didn't know that. But this conference was about more than inflammatory rhetoric: one of its main purposes was to promote the Constitution Restoration Act, also known (or should be known) as the No Church-State Separation Act. The most ridiculous clause is the following: "Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government." The rest of the Act is equally offensive, but with this it is clear that the new goal of the Christian right is a theocracy. And the fact that this Act could even be introduced into Congress shows just how close we are to the fulfillment of this goal. The end of Roe v. Wade would not halt these people: abortion is not their only grievance any more. There is a vast litany of potential hot-button issues that could replace abortion as the motivating power behind this drive towards theocracy: gay marriage, contraception (especially the morning-after pill), the display of the Ten Commandments or other Christian imagery in public places, prayer in schools, etc., etc. For Brooks to state that the reversal of Roe v. Wade is sufficient, or even necessary, to restore civility to politics is ludicrous: the Christian right will be satisfied with nothing except the legislation of their interpretation of Christian morality, and those of us who don't believe that God is the source of government, but, as this musty old document says, hold that it derives from the consent of the governed, will continue to fight them.

It is almost as stupid to point to Roe v. Wade as the source of all political acrimony today. It was certainly one source of incivility, but hardly the only one. For instance, here's an article from the Eagle Forum about how the Warren Court "fueled the Culture War into an inferno and then placed the federal judiciary squarely in the white-hot center of the conflagration." Strangely, Roe v. Wade wasn't until 1972, three years after Warren retired. And what is the Eagle Forum? It's the radical right-wing organization of prominent conservative Phyllis Schlafly. Perhaps abortion is not quite as central to the radical agenda of the Christian right as Brooks seems to think. In fact, there are a number of similarities between the attacks on Warren by the far right in the fifties and sixties and the attacks on judges by their ideological heirs today. He was denounced as a Communist by the head of the John Birch Society. At one massive rally, a speaker prefigured Edwin Vieira by declaring that impeachment was too good for Warren: he should be hanged. The fact is that the right-wing war on the courts has been going on for a long time, and for good reason: in order to establish a theocracy, the courts will have to be neutered or replaced en masse with Christian conservatives.

Sadly, Brooks's column only goes downhill from the collapse of his main thesis. Consider his claim that "[the Roe decision] took the abortion issue out of the legislatures and put it into the courts." This is obvious nonsense. The issue was put in the courts by Jane Roe, whoever she was. The Supreme Court would have to rule on it at some point, and no matter what Brooks thinks, the basis of that ruling would be the justices' interpretation of the Constitution. If the justices felt, as they did, that the law (a Texas anti-abortion statute) was unconstitutional, they had no choice but to so rule. They could not say "Well, this statute is unconstitutional, but we feel that it would be best if the issue was left to the legislature where a compromise reflecting the centrist consensus can be worked out." And if Brooks had actually read the decision, he would know that it allows states to regulate abortion after the first trimester, as long as an exception is made for the health of the mother. Presumably, this reflects the kind of centrist compromise that Brooks thinks exists (unless Brooks is even crazier than we think). And it's interesting that Brooks feels that legislative compromises would have been regarded as more legitimate than a judgement passed down by the highest court in the land. Does he really believe that the first bill passed by a state legislature allowing abortion would not have been immediately challenged in court? Remember, the Supreme Court, a body which exists purely for the purpose of determining whether legislation is consistent with the Constitution, held that legislation banning abortion is not constutitional. I'm not sure how one could exceed that in terms of legitimacy.

Brooks then states that "Blackmun and his concurring colleagues invented a right to abortion." This is a gross misrepresentation. The actual decision stated that "State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy." Essentially, Blackmun asserts that abortion falls under a right to privacy which derives from the 14th amendment. This is not at all the same thing as inventing "a right to abortion" out of whole cloth. Certainly, nowhere in the Constitution does it say that a woman has the right to an abortion. But then again, neither does it say that a woman has no right to an abortion. That is, at least in part, why we have a Supreme Court: so that issues such as this one, to which the Constitution does not directly refer, can be adjudicated. Also, it's interesting to note that abortion was legal in the United States until the middle of the 19th century, so it's not as if the Founding Fathers didn't have the opportunity to express an opinion on this issue at the time the Constitution was written.

Brooks also asserts that Roe v. Wade "imposed a solution more extreme than the policies of just about any other comparable nation." Well, I guess it all depends on what nations Brooks feels are comparable. Apparently, Belgium, Canada, Denmark, Germany, Greece, Hungary, Latvia, Netherlands, Norway, and Sweden are all not comparable as all have abortion policies that are more liberal than the United States's. And as the decision does allow abortion to be heavily regulated after the first trimester, and banned in the third, as long as an exception is made for the health of the mother, that would presumably bring us into line with most First World nations.

What were the consequences of this, according to Brooks? Well, apparently "religious conservatives" felt that "their democratic rights had been usurped by robed elitists." This is, frankly, stunning in its idiocy. What democratic rights had been usurped? The right not to have an abortion? The right to protest against the existence of abortions? The right to believe that abortion is a sin? No, the "right" that has been usurped is the right to impose one's religious views on other people, and I'm pretty sure that this right is not enshrined the Constitution. If a group's religious beliefs lead them to believe that black people are inferior -- and remember, the Bible was often called upon to provide a justification for slavery -- and the Supreme Court says that the Constitution disagrees, does that allow them to claim that their democratic rights have been usurped? Or, more to the point, does that require anyone in their right mind to sympathize which such a claim? Not only is this idea that democratic rights were lost stupid, it's wrong: the decision could be overturned democratically with a constitutional amendment. But Brooks's formulation of the grievance of religious conservatives, that "their democratic rights had been usurped", really shows just how hollow their case is. Abortion is an entirely private affair. It cannot be argued by any stretch of the imagination that an abortion impacts the lives of anyone outside of the family of the woman who chooses to have an abortion. Murder, for instance, is banned because it might happen to us against our will, but no one in the United States will ever be forced to have an abortion against her will. So there is no sense in which anti-abortion protesters can be said to be losing any rights from legal abortion. Their position is based entirely on the contention that abortion is morally wrong, this contention is drawn entirely from their religious beliefs, and therefore to ban abortion would be to violate the separation of church and state in an extremely clear-cut fashion by imposing the religious beliefs of some on all.

Brooks next claims that Roe v. Wade caused liberals to lose touch with the working class because "they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views." This is nonsensical: the whole point of Brooks's piece is that Roe v. Wade injected a lot of acrimony, much of it about abortion, into the national consciousness. Abortion was the topic on everyone's lips. Yet somehow the Democrats managed to get away with never having to discuss their views on abortion. And despite talking about abortion so much, the working class apparently didn't actually care what politicians thought about it. There are plenty of reasons why the Democrats have lost touch with the white working class, but abortion is probably not the most important, and the fact that polls consistently find that a majority of the population supports Roe v. Wade would seem to support this.

Furthermore, Brooks says, both political parties have become "dominated by absolutist activists." Indeed? What, exactly, does an absolutist pro-choice activist look like? This view even over-simplifies the Republican side of things: the Christian right is much more than simply a bunch of anti-abortion activists. Furthermore, polls show that Americans think that the Democratic party is closer to their views on abortion than the Republican party, 45-35, and that any Supreme Court justices who are nominated should uphold Roe v. Wade, 50-34. Given these numbers, it seems that the Democratic party actually reflects the views of a majority of Americans and that it is only the Republicans who have been hijacked by extremists. But we shouldn't be too surprised: it's practically standard operating procedure for Brooks to conjure up a false equivalence between the Democratic and Republican parties. Sadly for him, no matter how hard he tries, he can't cover up the fact that the Democratic party reflects the views of most Americans on abortion, and the minority of hard-core activists on the Republican side are responsible for just about all of the lack of political civility he deplores.

Brooks also casually drops off the claim that abortion is never the subject of judicial confirmation battles: instead, some other pretext is sought. This sounds like an attempt to suggest that the judicial nominees the Republicans are currently seeking to push through are perfectly fine except for their anti-abortion views, so just to set the record straight, here's Alberto Gonzales attacking the right-wing judicial activism of Fifth Circuit nominee Priscilla Owen (this woman is too much of an activist even for the Attorney General who dismissed the Geneva Conventions as quaint); a wide-ranging report on D.C. Circuit nominee Janice Rogers Brown, who is probably certifiably insane; a brief discussion of the record of Eleventh Circuit nominee William Pryor, the man who complained when the Supreme Court ruled that "handcuffing a prisoner to a hitching post and denying him clothing, water, and even bathroom breaks" was cruel and unusual punishment (no wonder he was nominated by Bush); and a press release on D.C. Circuit nominee Thomas Griffith, who practiced law in Utah for several years without a license (I really feel that that one speaks for itself).

Brooks then comes to the filibuster, and breaks out the Big Lie (there's always one in these columns): "Up until now, minorities have generally not used the filibuster to defeat nominees that have majority support. They have allowed nominees to have an up or down vote." This is partly simply misleading: minorities, including groups of Republicans currently in the Senate and fighting to destroy the filibuster, have attempted to use it to defeat nominees before, but failed. But in a larger sense this is a lie. During the Clinton Administration, there were a number of ways to keep nominees from being approved without resorting to the filibuster. There was the blue slip system, by which senators were allowed to overrule the appointment of judges to courts in their home states. There was a rule stating that if any Judiciary Committee member objects to a nominee, at least one minority member must support the nominee. Anonymous floor holds could be placed on nominees to prevent votes. And many nominees were simply denied hearings, even nominees with bipartisan support. Clinton even consulted with Republican Senators on nominations, especially nominations for courts in their home states. As a result, Republicans did not have to resort to the filibuster to stop judges they disapproved of: such nominations simply died in committee. As a result of these tactics, in 1999-2000 19 of 32 Clinton appeals-court nominee were prevented from receiving votes (by contrast, Democrats have blocked 10 of 52 Bush appeals-court nominees in his entire first term). But when Bush assumed the presidency, all the rules that the Republicans had used to slow nominations during Clinton's terms were eliminated. Unable to fight nominations in committee, the Democrats were forced to resort to the filibuster, and the Republicans have now decided that even this is too much power over nominations.

Aside from Brooks's blithe assertion that the Republicans have the right to eliminate the filibuster, he is mostly right about why the Republicans should not eliminate the filibuster. But once past that explanation, he oversimplifies things. It is not abortion activists who want the filibuster gone: it is religious conservatives who want far, far more than the overturning of Roe v. Wade. And he does a nice job of suggesting that the Democrats would carry out their threat to shut down Senate business if the Republicans deploy the nuclear option because otherwise their pro-choice activists would eat them, which is nonsense. It is the Republicans who are being pushed to the nuclear option by the radical Christian right, and if they do kill the filibuster, the Democrats will fight back because they believe that, even though they are the minority party, they do have some rights in the Senate (as opposed to the House, where Democrats have no rights at all). Abortion is really only a secondary motivating factor now: it might well be that the Terry Schiavo controversy has (if only temporarily) surpassed abortion (and gay marriage) as the number one right-wing complaint about activist judges.

In his final paragraph, Brooks declares "The entire country is trapped." This is correct: the problem is that Brooks claims that we have been trapped by a handful of Supreme Court justices, and by extension all women who want abortions. Because that is really what it comes down to: at some point, some woman was going to sue because the law of the state she resided in prevented her from making a decision about what she could do with her own body, and the Supreme Court would hold that no state law could interfere with her right to control her body (the decision is more complicated than that, of course, as has been pointed out above, but for this argument, simplicity will suffice). This is a truly classic and disgusting blame-the-victim approach, which Brooks attempts to hide by saying that we need to have a "democratic abortion debate." But why is such a thing necessary? If such a debate should result in a majority deciding that they are more qualified to regulate women's bodies than the women themselves are, would that make them right? In fact, such a situation is exactly one where the courts should step in, according to Alexander Hamilton in Federalist Papers 78: "This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which . . . the influence of particular conjunctures, sometimes disseminate among the people themselves, and which . . . have a tendency, . . . to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community." So no, we are not trapped by Supreme Court judges, or by women who want the right to control their own bodies: we are trapped by extremist fundamentalist Christians who are attempting to impose their beliefs on the entire country.

And, apparently, the Times, and its readers, are trapped by Brooks. Perhaps he has compromising photographs of the Times editors? Maybe they owe him vast sums lost at the weekly editorial and op-ed pages poker game? Or does Brooks have supernatural powers that allows him to prevent the Times editors from discerning just how shitty his work is? Today's column is a mass of lies, distortions, and idiocies, and it's hardly the first to match that description, yet it is extremely unlikely that Brooks will be fired for it.