NOT A GOOD WEEK FOR JUSTICE

Robert Bork’s failed domination set a crucial precedent that a nominee whose jurisprudence endangers fundamental freedoms can and should be rejected by the Senate regardless of his personal competence. Unfortunately, Senate Democrats set a new one on Monday by stopping short of a filibuster on Sam Alito, a man who literally wrote the brief on how to kill Roe v. Wade, who has shown unwavering support for the power of the federal government to have its way with marginalized individuals, and who rejects that government’s responsibility and power to act in the service of the disenfranchised. Monday set a dangerous new precedent that when push comes to shove, the Senate will advise and consent only on whether the nominee is a sex offender or an incompetent. It’s a precedent Republicans can be depended on to take advantage of, to the real detriment of everyone who looks to an independent judiciary to safeguard their rights.

The Democrats’ ostensibly rebellious clapping after Bush said that Congress hadn’t enacted his plan to erode Social Security only emphasized the dark irony of the day: politicians who express their opposition through unauthorized clapping but not through the parliamentary avenues available to stop the confirmation of men who will leave us less free.

Want to put some real progressives into Congress? Here’s a good place to start.

NOT DOING US ANY FAVORS

Howard Dean was doing a decent job on Hardball reminding Chris Matthews that it was the White House, and not the Democratic Party, that first declared Samuel Alito’s record as a prosecutor to be relevant to the merits of his nomination. But then Matthews brought up Alito’s far-right position on spousal notification and instead of hitting out of the park the question of whether a woman should need a permission slip from her husband to decide what happens to her body, Dean got dragged into a losing fight over whether it was accurate to describe the Democrats as a “pro-choice party.” Dean shied away from the characterization, even though it describes a plurality of Americans, on the grounds that calling the party pro-choice suggests that people with the party’s position are not “pro-life.”

That would be the problem with the term “pro-life,” not the term “pro-choice.”

Dean fumbled back and forth between describing his position as one supporting a woman’s right to choose and one supporting a family’s right to choose, and insisted that the Democratic party’s position was not an “abortion rights” one. If the idea was to communicate that the party was open to abortion opponents, it’s not clear what Dean accomplished towards that end. But for those looking to the Democratic party in hopes of figuring out what it stands for, it clear what the costs are of bristling and hedging over whether you should be called “pro-choice.”

WHAT IS BARACK OBAMA SAYING?

Friday, Barack Obama wrote a response to blogospheric criticism of his criticism from the Senate floor of advocacy groups which were condemning Senators who voted to confirm Roberts (Obama himself voted against confirmation). He makes some points I agree with, and some I don’t. Most frustrating, though – and all the more so given his gift as a writer – are the arguments which sound nice but whose meanings are difficult to tease out at all. Like this one:

My colleague from Illinois, Dick Durbin, spoke out forcefully – and voted against – the Iraqi invasion. He isn’t somehow transformed into a “war supporter” – as I’ve heard some anti-war activists suggest – just because he hasn’t called for an immediate withdrawal of American troops. He may be simply trying to figure out, as I am, how to ensure that U.S. troop withdrawals occur in such a way that we avoid all-out Iraqi civil war, chaos in the Middle East, and much more costly and deadly interventions down the road. A pro-choice Democrat doesn’t become anti-choice because he or she isn’t absolutely convinced that a twelve-year-old girl should be able to get an operation without a parent being notified. A pro-civil rights Democrat doesn’t become complicit in an anti-civil rights agenda because he or she questions the efficacy of certain affirmative action programs. And a pro-union Democrat doesn’t become anti-union if he or she makes a determination that on balance, CAFTA will help American workers more than it will harm them.

There are several ways to read this argument:

One is that what matters is a politician’s values, and not individual votes, and so it’s wrong to call a politician “anti-civil rights” for casting votes which hurt the cause of civil rights. The problem with this argument is that we elect representatives to cast good votes, not to personally sympathize with us and our values.

Another is that none of us has the right to decide what these labels mean – that it’s arrogant and inappropriate for pro-choice activists to tell politicians what it should mean to be pro-choice. The problem with this argument is that there’s no point in working to advance the cause of “choice” in general if that excludes advancing a particular understanding of what is and is not pro-choice policy. While it’s arguable whether or not the movement would be served by more politicians claiming the pro-choice mantle without changing their policy positions, but it certainly be insufficient.

Another argument which could Obama could be making here is that is that immediate troop withdrawl from Iraq, opposition to parental notification laws, defense of affirmative action from “questioning,” and opposition to CAFTA are not in fact serving the goals of the anti-war, pro-choice, civil rights, and labor movements, respectively. In other words, he could argue against the positions he thinks Democratic senators are wrongly being held to on the merits. But if there’s any such criticism here, it’s only implicit (Obama, for the record, voted against CAFTA in the Senate, voted against parental notification in the Illinois Senate, and is not calling for an immediate withdrawl of all US troops).

Given that Obama seems not to be articulating that argument, he could be arguing that these particular issues are just not important enough to make a big deal of. But it’s hard to imagine the groups he names not putting up a fight over these issues, and it would be hard to believe that Obama would expect them not to. CAFTA was the first comprehensive trade deal to come before the Congress under Bush, crafted to erode worker protections which accelerating the race to the bottom. Parental notification policies are, along with denial of government funding, one of the major policy impediments to women’s substantive exercise of their right to choose.

A more spurious argument which Obama seems implicitly to be making through questionable word choice is that the problem with these left-wing advocacy groups is that they’re out to restrict elected officials’ freedom of expression by punishing them for not being “absolutely convinced” on parental notification or “making a determination” they don’t like on CAFTA. To the extent that advocacy groups criticize elected officials for critical public statements, they’re not chilling speech – they’re responding to it, and I’d say there are some criticisms which are deserved and others which aren’t. But phrases like Obama’s here aren’t really about speech – they’re about votes. To describe a pro-choice group as punishing a legislator for not being convinced of something conjures up Orwellian images, but what pro-choice groups are taking legislators to task for isn’t private thoughts – it’s how they legislate.

The final argument that I think could reasonably be read from this paragraph, is that advocacy groups shouldn’t expect politicians to vote the way they want all of the time. But why not? Certainly, it would be a poor tactical choice for such groups to predict that everyone they want will vote however they want all of the time. But given the premise that their positions are the right ones (and with the exception of immediate and total withdrawl, I believe they are, and Obama seems to as well), shouldn’t support of all of their positions be the standard against which they judge elected officials? Does Obama really expect the National Council of La Raza to make public statements like, “Sadly, the Senator is only 85% of the way to casting votes to extend rather than restrict civil rights at least 60% of the time”? Elected officials, locally as well as nationally, often revel in disparaging “activists” for failure to understand the necessity of compromise. The first problem with that critique is that too often, the compromises are bad ones. The second is that the way we get good compromises is by having leaders on our side who are willing to take strong stands in the face of opposition. Obviously, writing a politician off as not worth working with in the future because of a vote on a particular issue is just bad politics – if you’re not organizing them, someone else is. But there’s a difference between writing off politicians who cast bad votes and being willing to publicly point out that those votes are bad. Voting for CAFTA may not make an otherwise pro-union legislator anti-union for good, but those of us who believe voting against CAFTA is the right vote and the pro-union vote to cast are, it seems to me, obligated to regard a politician who votes for CAFTA as less pro-union than if she hadn’t. Otherwise, we might as well pack up and go home.

Or maybe all Obama was trying to say was that left advocates should soften their rhetoric. I don’t think describing a Senator who votes to confirm a nominee for Chief Justice as in some way “complicit” in particularly aggregious decisions that Justice makes on the court is in any way out of bounds (and yes, that means Russ Feingold, of whom I remain a big fan, bears some degree of responsibility for what Justice Roberts does on the court). And I don’t think the left or the country are well-served when advocacy groups whose fundamental mission is an ideological one, not a partisan one, hold their fire in taking politicians of one party to task for actions for which they would condemn members of the other. Is there some exaggerated, over-the-top, nastily personal rhetoric out there? Of course. But if that’s what Obama takes issue with, he could have found a clearer way to say it.

CAREER PATH TO MOTHERHOOD?

Tuesday’s New York Times piece on women at schools like Yale who plan to become stay-at-home moms addresses an important phenomenon. Unfortunately, it makes little more than passing mention of the underlying issues of class and gender which shape the choices the article pitches largely as curious lifestyle decisions.

Class divisions deeply inform women’s and men’s decision about parenting in work in multiple ways. They make it possible for some women to picture living and raising children comfortably off of the income of an exceptionally well-paid spouse without making the economic sacrifices most families have to when one parent stays home. At the same time, class divisions leave other women in positions where the work-family compromises they would like to strike as working mothers are unfeasible because they lack the bargaining power to achieve the schedules and receive the support from employers that they need. So while class makes it possible for some women and impossible for others to maintain economic security while leaving the workforce, class also makes it possible for some women and impossible for others to balance work and family responsibilities.

Underlying the responsibilities in play here are gendered conceptions which haven’t yet changed as much as many of us would like to think. It’s difficult to argue with those who suggest that a woman’s choice to stay home and raise kids deserves respect, but it’s important to consider the ways in which social structures and pressures constrict and inform that choice. The debate need not be confined to one side which argues that women and men should both be evaluated by the standards by which we’ve traditionally judged men and another side which argues for an essentialist, “difference feminist” understanding of what women are and should be that trots out old tropes about their essential nature. Instead, progressive feminists can and should take on traditional paradigms of male and female identity behavior, arguing for a shared, less gendered repetoire of goals and actions which makes traditionally male and female jobs and tropes accessible to both genders. Women who want to build homes with men can’t make fully free choices about how to balance family and work until men are equally challenged and expected to make equivalent sacrifices as well.

We’re not there yet.

BIBLICALLY INCORRECT

Democracy for America just e-mailed to announce an on-line petition against Pat Robertson’s fatwa on Hugo Chavez reminding the pastor of the biblical commandment that “Thou shalt not kill.” I’d be all for spreading a little gospel to the everyone’s favorite venal, hateful, antisemitic (didn’t stop the ADL giving him an award for supporting the Israeli occupation) pastor, except for one problem: There is no biblical commandment that says “Thou shalt not kill.” There is a biblical commandment saying lo tirtzach. But that doesn’t mean “Do not kill” (not reason to dress it up in Old English). It means “Do not murder.” The Torah has lots of words for killing itself, but they don’t show up in the Ten Commandments – they show up at the various points where God affirmatively commands Israelites to kill particular people or peoples.

That’s not to say that opposition to violence itself doesn’t have support in Judeo-Christian tradition. It’s just to say that opposition to killing people across the board has no more grounding in the literal meaning (or p’shat) of the Torah than, say, opposition to aborting fetuses. What the Torah is clearly against is murder – killing unjustly. And the plentiful body of (inter alia) Jewish commentary on what counts as wrongful killing provides plentiful arguments for serious discretion in the use of lethal force. One cluster of examples would be the set of restrictions on the application of the death penalty which rendered it virtually impossible for human beings to carry it out (rules like the traditional prohibition on executing anyone based on a unanimous verdict, because a unanimous verdict suggests that the jury didn’t struggle with the issue hard enough). Needless to say, there are no lack of compelling religious arguments for why murdering a democratically-elected foreign leader in cold blood is something other than a good idea.

THE OTHER SIDE OF ROE

One of the more interesting points William Saletan makes in Bearing Right is that as long as a sizeable number of Americans believes neither that a woman has a right to choose nor that a fetus has a right to life, we’ll continue to see employers, judges, parole officers, and others pushing policies which should trouble those who believe in either – policies which deny pregnant women who want to carry a fetus to term, or women who want to retain the ability to get pregnant in the future, the chance to do so. The case studies Saletan explores show that when the issue is mandatory abortion, pro-choicers and “pro-life” activists have generally been united in defending a woman’s right to choose birth, though in cases where the issue is mandatory sterilization, “pro-life” organizations have too often stood with those who would take away a woman’s or man’s reproductive autonomy, whether permanently or for the duration of coercively-implemented injections.

The ultimate line of legal defense for women told that sacrificing the chance to have a child is the cost of a job or a parole is that much-maligned but nationally popular decision, Roe v. Wade. One of these women is April Thompson, who is suing Piedmont Management Associates for firing her over her decision to remain pregnant:

According to the lawsuit, when Ebert found out Thompson was seeing a fertility doctor, she told her she was “worried that she was trying to get pregnant.” “If you get pregnant, you will have to move because I am not putting up with any babies around here and you also won’t have a job,” the lawsuit says Ebert told Thompson. “The guys and I do not even hire single mothers because of the problems. I know you have some great delusion that you will be a great mother, but you won’t — you can’t even take care of your dog.”…According to the lawsuit, when Ebert found out, she demanded that Thompson get an abortion.

April Thompson is a poster child for the centrality of privacy and workers’ rights to the pursuit of happiness this country promises. And her case represents the danger of a jurisprudence which would elevate an ostensible “free contract” right to sign away your personal freedom over individual rights, and the judgment of the state over the bodily integriy and autonomy of the individual. It reminds us why, if John Roberts still sees Roe as “unprincipled jurisprudence” and scoffs at a “so-called right to privacy,” and plans to remain the “go-to lawyer for the business community, then America deserves better than John Roberts on the Supreme Court.

WHERE ARE THE CATHOLIC WORKER POLS?

As Matt Yglesias observes, the relative absence of economically liberal social conservative politicians isn’t based on any lack of voters with that set of views. Michael Lind has an interesting take on it in Up From Conservatism. I still don’t know where he got the idea that the number of Americans “who sincerely believe both that abortions should be outlawed and that there should be further massive tax cuts for the rich – is quite small” (maybe he’ll explain it over at TPMCafe). But setting aside Lind’s questionable demographic premises, I think there’s some truth to his argument that the scarcity of politicians who are socially conservative and economically liberal is related to the scarcity of members of the American elite, however defined, who are what Europeans would call “Catholic workers,” libertarians would call “authoritarians,” and Lind would call “national liberals.” Self-identified libertarians, on the other hand, are much better represented amongst the elite than amongst the American public.

FROM YOUR MOUTH TO GOP EARS

Just watched Tucker Carlson on his new show complaining about the disparity between full-throated defenses of Roe from Democrats and opaque evasions from Republicans. He claimed to be at a loss as to why, with a nomination battle brewing, the Senators on his side are so hesitant to explicitly defend their desire to see Roe go. Hard to blame Tucker for wanting GOP Senators to talk more about how they really feel about the right to choose. There’s an obvious answer for Republicans’ behavior on this though: They know that most people disagree with them.

Amid all the judicial tyranny chatter, it’s easy to forget that between half and two thirds of Americans consistently tell pollsters that they want Roe upheld (the number is higher among moderates). A good number of them, unfortunately, are comfortable with restrictions on the right to choose which make it difficult for poor women or young women to exercise. (William Saletan documents this dynamic in Bearing Right, and makes a persuasive argument that the anti-government, family-centered rhetoric the pro-choice movement has used effectively to build support for Roe has backfired when it comes to laws which narrow whom it meaningfully applies to). That’s why the way Bush called for Roe to be overturned during the debates was with a coded reference to pretty universally unpopular Dred Scott.

START YOUR ENGINES

News is that the Supreme Court nominee will be announced tonight at 9 PM, and the buzz is that it’s Edith Brown Clement. She seems like a likely choice: she’s a woman, has avoided drawing as much controversy to herself as a Janice Rogers Brown, and has a far right-wing vision for the court and this country (it always seemed to me that the Gonzales trial balloon was just about getting credit from Latinos for considering him and getting credit from evangelicals for not nominating him).

Brown Clement’s opaque views on abortion will likely continue to dominate news coverage; apparently she refers to Roe as “settled” but not made particularly clear whether she would be interested in unsettling it. The bad news there is, anti-choice leader Hadley Arkes is optimistic:

Just whether or when Roe v. Wade is actually, explicitly overturned may cease to matter quite as much. For in the meantime, the public would have the chance to get used to a continuing train of laws restricting and regulating abortion.

As for the Lochner litmus test, however Brown Clement feels about judicial activism to protect privacy, she seems all-too comfortable with judicial activism to strike down progressive regulations. As Nathan observes, she supported a challenge to the constitutionality of the Endangered Species Act, denied ADA protection to employees discriminated against for having HIV, and argued for making it harder for the poor to get legal representation by cutting legal fees when clients win small awards. As Jeffrey Rosen wrote last year:

How would a stealth candidate like Clement perform on the Supreme Court? Everything about her record suggests she would enthusiastically support the federalism revolution…Taken to its logical limits, the Constitution in Exile would call into question not only environmental protections but workplace regulations like the Occupational Safety and Health Act.

FLIP-FLOP IN A PHRASE

Appearing on Hardball, What’s the Matter With Kansas star Sam Bronwback (R-Kansas) just told us that Americans are angry at the courts because they keep “inserting themselves” in issues where we don’t believe they belong, like Roe, and “changing our understanding” of issues like property in cases like Kelo. What he avoided saying, lest he stray off the message discipline reservation, is that the decision in Kelo he decries as a change was a decision not to overturn the law. Senator Brownback’s problem with the court’s economic jurisprudence, in other words, is that it’s not activist enough.

The conservative establishment vision for the court is not that it leave controversial decisions to be settled directly by the people, but rather that it step back when majorities choose to legislate against civil liberties (especially those of others) , and then aggressively intercede to overturn even those economic regulations which are overwhelmingly popular. Conservatives like Sam Brownback are outraged when the court stops a heterosexual majority from writing homosexuals out of the city’s non-discrimination laws in Romer, but elated when it turns back Congress’ attempt to keep firearms out of our schools. Whereas my reactions, unsurprisingly, are the opposite. A couple days ago I set forth a couple of the reasons I think the Court is justified in blocking the imposition of majoritarian sexual morality in Griswold and unjustified in blocking the majority’s attempt to set common labor standards in Lochner (if you want to have sex without condoms and make at least $5 an hour at work – not at the same time that is – my using condoms doesn’t make a difference to you but my working for $1 does). And Brownback has his reasons for his position as well. But unlike, say, Nathan Newman, he can’t hope to credibly claim that he’s an opponent of “judicial activism” across the board (and unlike – maybe – Finnegan, he can’t claim to be a consistent fan of judicial intervention to limit government either).

As a couple Yalies just showed in a Times piece identifying Clarence Thomas to be the Court’s Activist-in-Chief, the question for most of us is when and to what extent such activism is just and appropriate, and the country would would be better served by a national debate on that question (personally, if the question were all the activism or none of it – which I’m glad it isn’t – I’d go with none so that the left would at least have recourse to the legislature, and a spur to organize).

THE LOCHNER LITMUS TEST

Finally made it into the Philadelphia Airport late last night, after several hours delayed in George Herbert Walker Bush Airport in Texas, a real monument to small government if ever there was one. It was long enough to read a good chunk of Ed Klein’s anti-Clinton screed, and yes, it’s as bad as they say, and certainly libelous – though I’m not convinced that should be illegal. And it was a chance to watch the same couple minute CNN piece on O’Connor’s resignation several times.

Not being a Democratic Senator, I have the freedom to go off message and say that O’Connor’s resignation is unfortunate not because she was the linchpin in some sort of divine cosmic balance on the court that’s best for the country, but simply because her replacement will almost certainly be even more conservative than her, and conservative jurisprudence is bad for our country. Of course, if she herself didn’t want that to happen, she shouldn’t have presided over the theft of the 2000 election.

As for who comes next, my sense is that the Alberto Gonzales trial balloon is a red herring. It wins Bush credit from some moderates and Latinos for having an ostensibly moderate Latino on the “short list,” and when he goes with a Janice Rogers Brown instead, he’ll win that much more credit from right-wing extremists for having “listened” to their concerns about Gonzales.

The good news is that there are still five votes on the Court for upholding Roe (Casey was 5-4, but since then Justice Ginsberg replaced Justice White, who was one of the four), though not Steinberg v. Carnhart, which the federal late-term abortion ban seems to have navigated around anyway. That said, support for the right to autonomy in intimate spaces and decisions long recognized by the court is absolutely a standard for just jurisprudence.

At least as important as support for Roe in the coming controversy, though, should be opposition to Lochner, the court’s atrocious 1905 decision overturning New York’s minimum wage statute on the grounds that the absolute right of contract including a “right to work” for poverty wages. Lochner was overturned in West Coast Hotel, which rightly upheld the power of the people, through the legislature, to foster justice in the face of collective action problems and asymetrical bargaining relationships by enforcing universal labor standards.

Since Justice Black’s dissent in Griswold, opponents of privacy rights have made the perversely labelled the cases protecting them as “Lochner”-like, ignoring the differences between legislation regulating the relationship between employers, employees, and consumers, one which is by definition public, and legislation which regulates the private choices of individuals. Much as Footnote IV in Carolene Products suggests that judicial review is more justified when exercised to protect the rights of “discrete and insular minorities” who face more obstacles in protecting themselves in the legislative process, legislation itself is that much more justified when it achieves collective ends a majority of individuals might prefer but be unable to enact individually due to collective action problems. The law wrongfully overturned in Lochner achieved majority support despite employer opposition because most workers preferred to work less than 60 hours a week but could not unilaterally refuse to work more without threatening their livelihood. It is far less credible to argue that the legislation barring contraceptive use rightfully overturned in Griswold solved a collective action problem shared by a majority of couples who did not want to use contraception themselves but were somehow unable to decide for themselves not to use them. This illustrates the distinction between private and public interaction, and why privacy rights, which protect the former from the kind of regulation appropriate for the latter, preserve personal freedom, while the absolute “right to work” suggested in Lochner diminishes it.

While Justice Black makes equivalence between Lochner’s invocation of substantive due process and that in Justice White’s concurrence, the relationship between the fourteenth amendment and absolute laissez-faire contract rights is far more tenuous than the relationship between the Bill of Rights and privacy. The laissez-faire hostility to so-called “class legislation” was also explicitly rejected as constitutional law by the people through the sixteenth amendment, which in imposing an income tax recognizes the right and responsibility of government to pursue economic justice and equal opportunity through law. The American people, whose prosperity has been fostered and protected by many of those laws, deserve a new Supreme Court Justice who recognizes that right and that responsibility as well.

Kingspawn faults my letter for conflating opposition to Roe and opposition to the right to choose. But that distinction is exactly why I wrote

As reported nine years ago in The New Republic, whose editors oppose the Roe v. Wade decision, Casey Sr. was not offered a chance to speak at the convention nominating Bill Clinton because he had refused to endorse Bill Clinton

and not “As reported nine years ago in the anti-choice New Republic.” The point of that clause, though I’ll grant it could have been stated more clearly or simply dropped, was that TNR is on the right of most Democratic voters on the issue of choice, and revels in decrying the Democratic party’s supposed deafness and meanness to voters (read: TNR writers) to its right on issues where TNR is to the right of the party (read: everything but equal marriage). So a repudiation of a story about the Democratic party keeping down Democrats in the right wing of the party means more when it’s written by a magazine that lives for righteous denunciations of the Democrats for keeping down the right wing of the party.

As for Roe v. Wade, it’s certainly not the best argued or compellingly written of our legal decisions, but the majority is right to recognize that autonomy in certain intimate situations and spaces is central to liberty. The equal protection argument (as my brother points out, we don’t mandate that men donate, say, their kidneys, a procedure far less cumbersome than nine months of pregnancy, to save what we can all agree to be living human beings in need of organs) absolutely should have been made in Roe as well, and the Casey majority’s time would have been much better spent expounding that than floating a stare decisis argument that privileges the legitimacy of the court over the rightness of its jurisprudence.