As the nation mourns the passing of the long-serving, frequently controversial, and much-beloved Justice of the US Supreme Court, the question has become: Who shall succeed her? The President has already filled two SCOTUS vacancies, and should be in a position to send a nominee to the Senate for confirmation well before the end of the session – possibly within the next week.
The President faces a difficult challenge from the Democratic Party’s nominee, who is currently leading by as many as eight points in the polls, only six weeks from election day. Senate Republicans and Democrats agree that they will do their duty as soon as the President does his, regardless of the election.
That is what the lede paragraphs to any story about the political ramifications of recent developments would say in any halfway healthy republic at any halfway sane moment in history. Ours is not a halfway healthy republic and this is not a halfway sane moment in history. Right now, Donald J. Trump is in the White House and Democrats want Joe Biden to replace him.
Quite frankly, we’re bonkers.
I don’t much care who started the business about presidents not making SCOTUS nominations in an election year. It’s silly, whoever did it. That the Senate’s exercise of their advice and consent duties has gone from tabloid litter to blood sport is unfortunate, but there you have it. All for a belief—closely akin to magical thinking—in the power of Senate hearings to reveal how SCOTUS nominees will vote on hot button issues, the hottest of which is abortion.
In an important sense, the Supreme Court did this to itself and to the American people when they started taking contentious issues out of the hands of the people in the states, who were debating them and making decisions based on those debates about how to order their lives together.
That’s going to happen every now and again in a constitutional republic with separation of powers, but the judiciary needs to do better than common room logic to justify itself when it does.
That, however, is mostly a subject for another time.
Significant numbers of pro-life citizens held their noses in hope that the monstrous Trump would make good on his promise to name judges to their liking. If Trump wants to keep his job—and there are days it seems to me he really doesn’t—he might even send up someone the Senate will have to reject, so he can hold the judicial card for the second term his credulous and at that point galvanized base would give him. One problem with that play is Republicans, who might confirm anyone he sends, regardless of qualifications or skeletons in the closet.
There are lots of scenarios, but suppose Trump sends a qualified nominee and suppose the Senate confirms, and then suppose a case comes up that presents an opportunity to overturn Roe v. Wade.
The Court could overturn Roe, but anyone who thinks the SCOTUS that could overturn Roe would also discover a Constitutional protection of unborn life is clearly self-medicating, and with some very potent product, too. The Constitution is silent on the subject, and the kind of legal reasoning around which a majority of justices could coalesce must be animated by the notion that powers and protections in the federal Constitution must be spelled out in plain words.
Nutshell: Abortion will either stay legal in all fifty states, or go back to each of them for state-level debate and decision. Pro-lifers have made it their business over the last quarter century to demonize their fellows —too often their bread and butter—so, the cause would already have a long row to hoe with precisely the people whose hearts and minds need winning, even if so many in the leadership of the movement hadn’t lately aligned themselves with racists and misogynists in support of a man who has the political instincts of Catiline and the morals of Caligula.
The Democratic Party, meanwhile, is so deeply in the pocket of the abortion interest that one is embarrassed when searching for an appropriate historical comparison. Democrats For Life America ran a full-page ad in The New York Times this weekend, in which they reproduced their letter to the Platform Committee of the Democratic National Committee of August 14th, ahead of the Democratic nominating convention.
The letter contained a proposal to reintroduce language similar to that, which appeared in the 2000 party platform: “We respect the conscience of each American,” the proposed language read, “and recognize that members of our party have deeply held and sometimes differing positions on issues of personal conscience, such as abortion.”
The proposal went on to suggest the party “recognize the diversity of views as a source of strength” and “welcome all our members to participate at every level of our party.”
To hear DFLA tell it, they received no answer from party leadership.
Signatories were hard to come by too, apparently: one current and three former governors or lieutenant governors; nine current or former House members; fifty-six current or former state legislators; thirty-two current or former local officials, along with some also-rans. DFLA say they spoke with “dozens” of Democratic officeholders who “supported the letter,” but couldn’t sign “because they fear the influence of Planned Parenthood and NARAL Pro-Choice America in the party.”
Maybe, maybe not—but the fact it’s plausible is damning enough, and we know about the appalling language with which Gov. Andrew Cuomo abused “extreme conservatives”—among them pro-life citizens— who “have no place in the state of New York.” That was in 2014. There was the more recent display of anti-Catholic bigotry from Senators Dianne Feinstein and Dick Durbin during the hearings on Judge Amy Coney Barrett’s nomination to the 7th Circuit Court of Appeals. “[I]n your case, professor, when you read your speeches,” Sen. Feinstein said, “the conclusion one draws is that the dogma lives loudly within you—and that’s of concern.” Yep, that happened.
Well, the Senate confirmed Amy Coney Barrett pretty handily, and her name is touted as a replacement for Justice Ginsburg, while Sen. Feinstein lost the confidence of the California Democratic Party apparatus and faced a primary challenge in 2018. She got re-elected. Sen. Durbin is not likely to face much trouble from his Republican challenger in Illinois, a former sheriff named Mark Curran.
There are lots of purple districts that could turn a little bluer, and red districts that could go purple—maybe whole states—if Democrats would only run pro-life challengers. The point is that political parties exist for one purpose: winning elections. A party apparatus that won’t run the candidate most likely to win or at least make a formerly safe district a real race is doing it wrong.
However this SCOTUS business plays out, it will be to the good if it hastens the deaths of the major parties. The realignment is long overdue, and the need for decentralization of party control apparatus absolutely of the essence. It’s not that the parties are weak, it’s that they’re strong in the wrong place: the top. Otherwise, they’re boneless. Until maybe forty years ago, the major parties were little more than local or statewide political clubs that got together once every four years to knock out a platform and pick a candidate for the presidential election. Does anyone reading this even remember the last time we had a floor fight?
You can’t ever go home—not really—but there’s something to be said for the old way of doing things. Imperfect as it was, our polity benefitted from having conservative Democrats and liberal Republicans in Washington, and races contested at home between candidates who campaigned on local issues without fear of facing a primary challenge from the extreme wings of their respective parties if they ran a race to the center or reached across the aisle during their terms.
Christopher R. Altieri is Rome Bureau Chief and International Editor of the Catholic Herald. His most recent book is Into the Storm: Chronicle of a Year in Crisis (416pp. TAN Books, 2o2o).
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