Column 2005-7-14 Commentary: The Return of Brooks

Today Brooks returns from his vacation anxious to persuade his regular readers that he has not lost anything during his two-week break and is still just as much of a moron as ever. He responds to those who are whispering that he may be growing soft or that the pressure of fighting of Tierney is getting to him by accomplishing the unprecedented feat of writing an entire column about who Bush should nominate to the Supreme Court without once mentioning ideology as a potential motivating factor. Brooks begins by pointing out that some say Bush should name a Hispanic or a woman. Harry Reid wants someone who's not too controversial, Arlen Specter wants a fresh face, and James Dobson wants another Clarence Thomas or Antonin Scalia. Except, of course, that Brooks doesn't mention Dobson, or any members of the religious right, despite the fact that they are undoubtedly exerting far more pressure on Bush than Arlen Specter, much less Harry Reid. The radical Christian right has hardly been keeping silent: mere hours after O'Connor resigned, the religious right began a preemptive trashing of Alberto Gonzales because Gonzales's views on abortion don't match the party line. In fact, abortion is likely to be one of the defining issues on which the battle over the next Supreme Court nominee is fought, and yet Brooks doesn't refer to it once in his column. The sheer, unmitigated cluelessness of not even mentioning abortion as one of the pressures that Bush is under strongly suggests that this column is intended to be a whitewash, especially as it's clear that Brooks has a particular "philosophical powerhouse" in mind, Judge Michael McConnell (and the fact that he is strongly conservative is a complete coincidence, of course). Only one other potential justice is even brought up in the column, and even she is mentioned only in passing. It's possible that Brooks believes that McConnell is the smartest and most accomplished judge in America, but it seems more likely that Brooks is trying to represent McConnell as an unideological judge whose value to Bush would lie in his philosophical abilities rather than his views on Roe v. Wade.

What philosophical abilities are those? Well, it seems that McConnell is opposed to the "Separationist" view in which church and state are to be strictly separated on the grounds that it is "not practical" and "leads inevitably to discrimination against religion." (Brooks here provides two examples of such discrimination, one of which is patently stupid). Instead, McConnell proposes a "Neutralist" view in which the government is, well, neutral about religion. Apparently this is some sort of philosophical breakthrough which has had vast influence: "in the past decade, courts have returned to the Neutralist posture McConnell champions." Or so says Brooks. No evidence is offered to suggest that the courts are actually making Neutralist rulings, or that, if they are, it is because of McConnell. To me, Neutralism sounds like an attempt to water down separation of church and state by essentially saying that if the government doesn't endorse religious speech, it's discriminating against it (or even a morally relativistic, politically correct way to excuse homophobia and similar viewpoints on the grounds that they're Christian viewpoints), but I'm hardly a legal scholar (and god only knows how Brooks has mangled, or, more likely, oversimplified McConnell's positions) so we'll assume that Neutralism is a perfectly legitimate theory. It does seem that McConnell opposes prayer in schools, so he's not a theocrat. But only barely. While giving an outline of McConnell's philosophical position, Brooks sadly neglects McConnell's record, so let's take a look at it, courtesy of the invaluable People for the American Way.

To start with, McConnell has criticized a number of Supreme Court decisions, such as the decision to strip Bob Jones U. of its tax-exempt status because BJU had banned interracial dating. According to McConnell, this is an "egregious" case of the court failing to defend religious freedom "from the heavy hand of government". McConnell is, of course, strongly opposed to Roe v. Wade, which he has compared to the Dred Scott decision (a good sign of a dyed-in-the-wool wingnut), and he has proposed that the Constitution's equal protection clause should apply to fetuses. McConnell also believes that one person, one vote is “wrong in principle and mischievous in its consequences.” (this in reference to key civil rights cases Baker v. Carr and Reynolds v. Sims). Not only does McConnell believe that racial discrimination is a-okay if it's religious, he thinks that nonprofit religious foundations should not be required to abide by federal labor standards (because apparently the minimum wage is deeply unchristian) and that there's nothing wrong with polygamy for Mormons. It's beginning to look like this "Neutralism" may actually require that the government not interfere with anything anybody wants to do as long as they claim that their religion requires it, which is an interesting way to interpret the separation of church and state. Need more evidence? McConnell has written that companies should be allowed to discriminate against homosexuals based on religious (or even non-religious) objections. And finally, McConnell has written an article in which he praised a judge for his "courage in defense of conscience" in essentially flouting the Freedom of Access to Clinic Entrances law, which rather damages the credibility of his protestations about how Roe v. Wade is settled law that he would never interfere with.

In short, McConnell is clearly a highly ideological judge who is very strongly opposed to abortion and believes in not just neutrality but special treatment for religion, as well as rather backwards views on civil rights. McConnell defended Robert Bork at Bork's nomination hearing, and McConnell doesn't appear to be that different from Bork. Brooks's attempt to present McConnell as a legal lion who cares only for judicial philosophy is laughable at best, although it strongly suggests that McConnell may be the next Supreme Court nominee. But Brooks does manage to reclaim his title of most moronic writer for the Times editorial page with ease, and that's something, isn't it?