Extremism and "The Right Nominee"  Part Two of Two

George Weigel is a distinguished scholar and author of many, many influential books. A strong pro-lifer, he writes a syndicated column which ought to be regularly read by anyone who appreciates concise, thoughtful arguments on a wide range of issues.

A column which ran in mid-June that I just saw last Friday is titled, "Extremism? Whose extremism" (You can read the piece in its entirety at http://www.eppc.org/programs/catholicstudies/publications/programID.16,pubID.2376/pub_detail.asp

He begins with a classic teaser. Quoting from his colleague, Ed Whelan, Weigel proposes a "thought-experiment." Without quoting the examples at length, the point is, imagine what would happen if a Democratic president proposed a nominee to the Supreme Court whose background included advocacy of a wide variety of views 90%-95% of us would find way outside the mainstream?

First, Weigel argues, it wouldn't be done. But if a Democratic President were so unwise, wouldn't even some Democrats join Republicans in using "legitimate legislative tactics to stop such a nomination." The punch line is, "Well, not quite."

The defender of these zany positions was Clinton nominee Ruth Bader Ginsburg, who cruised through confirmation hearings. Presidents (at least Democratic Presidents) are given wide berths in selecting nominees.So, while Ginsburg gets a free pass, the label "extremist" is, oddly enough, pinned on those who have reached the eminently reasonable conclusion (as Weigel wrote) that "Roe v. Wade and Casey vs. Planned Parenthood got it wrong when they discovered a 'right to abortion' in the U.S. Constitution." Weigel  devotes the remainder of his column to explicating how egregiously unjust these decisions were. Near the end, he draws this highly important conclusion:

"The Supreme Court can get it wrong on minor matters without doing serious damage to the Republic. But when it gets it very wrong on a very important matter, the mistake acts like a toxin, poisoning virtually our entire public life. Dred Scott got it seriously wrong, and public life deteriorated to the point of civil war. Plessy v. Ferguson got it seriously wrong in declaring segregation constitutional; decades of poisoned race relations, logjammed Congressional initiatives, and distorted presidential politics followed. Roe and Casey, which got a fundamental question of justice just as wrong as Dred Scott and Plessy v. Ferguson did, is having precisely the same effect: it is systematically poisoning other aspects of our public life. ...Failure to recognize the injustice of Roe and Casey and their distorting effects on American democracy is the real extremism."

This morning the Washington Post editorialized on "The Right Nominee." You'll never guess the qualifications (well, maybe you might).

He or she will be "content to decide specific cases"; worship at the shrine of "stare decisis" (i.e., conclude that no matter how poorly reasoned Roe and Casey were, justices should give them a mulligan and allow to stand forever since they are, it is implied,  "age-old precedents"); and not be cramped by insisting on an "anachronistic treatment of law that was written in general terms to remain relevant to a changing society"--otherwise known as the "living Constitution."

But as even the Post admits, "Liberals and Democrats, having lost the election, cannot reasonably ask Mr. Bush to nominate a justice to suit their tastes." Yet the Post and its ilk place ALL the responsibility for avoiding a "full-fledged war" on the President. It's up to Mr. Bush, we're told, to "offend a minimal number of his foes," not for his Democratic foes to give the President's nominee a fair shake.

 

You can reach me, Dave Andrusko, at dandrusko@nrlc.org.