The Mid-Atlantic Blog

February 01, 2006

Alito & The Dwindling Of The Democrats

With the swearing in of Justice Alito, we can take a look back at the last few weeks and months to survey the damage. It's instructive for those in the UK polity as they assess US politics. It also gives us some insight into the implications as the UK moves more and more towards a judge-run society.

Let's remember where we came from - a huge distortion of the constitutional structure of the country to ensure a set of political goals. What do I mean by this? Simply this. Unable to get their political objectives achieved by the building of popular consensus on key social issues, Democrats have focused on the courts and law schools, to change the law by judges, rather than by legislation. For years they have been aggressive in attack (the disgraceful but successful Borking of... er... Bork). They have demonstrated arrant hypocrisy (attacking Justice Thomas for supposed sexual harassment, then mounting a party-line defense a few years later of President Clinton claiming that "it's only about sex"). And for years they were met by passivity from the right, with moderate candidates being appointed and then moving towards the liberal activist consensus over time.

The result of this has been deeply corrosive. The abortion question is the perfect example. It is, of course, not mentioned in the constitution in any way. Yet Roe v Wade enshrines it as a right (and not, as often reported, only at the early stages of gestation). This means that the kinds of question discussed elsewhere by Parliaments are kept outside the bounds of politics. The end result of this has, of course, been that the issue has become more, rather than less, political, with the grand anti-Roe coalition containing a whole group of people with different views (from total abolitionists to constitutional purists, through those who believe in more control but not abolition). Such a coalition would not exist were it not for the nonsense of Roe, but this coalition has benefited the Republican regeneration for years. And abortion is not the only issue - affirmative action, gay marriage and many others come under this purview.

Over the last 25 years the right has slowly been building a response. An infrastructure of organisations to provide support, both practical and intellectual, for conservative jurists had to be built, and the slow progress of lawyers through the institutions of government and the courts has slowly built up the bench-strength for future appointments. Today there is that pool, and President Bush has now dipped into it twice, with Rogers and Alito (failure of will and misplaced loyalty produced the road-bump that was Meirs - and the objection to her was precisely because of the fact that she was not from this pool) - skilled, high quality jurists both... and notably non-political in their judgments. And that's the emphasis. The view of this movement is to get back to the constitution, and back to the law. The political views of the judge are left outside the court, and the case is decided as neutrally as possible.

But that's where the Democrats suddenly come up against a problem. The whole of their worldview is based on the fact that judging is a political action. In that analysis, an approach to judging that concentrates on what the constitution says is a political, rather than a legal, approach. But it isn't. It's simply a concern for the rule of law. And as the leftward interpretative tide has stopped, the last area of political gain for the left has also gone.

The result has been implosion. The loss of control of the channels of communication, and the rise of the internet mean that the types of attacks that used to kill a nomination, or damage the public perception of an appointee for ever now only make the nominee's wife cry. Alito and Roberts were not bigots, radicals, fascists, or racists. Attempting to brand them as such simply made the accusers look foolish.

And finally we get the Kennedy meltdown, and a failed attempted filibuster and the most political vote for a justice in living memory.

This is a political movement devoid of intellectual honesty, devoid of constitutional propriety and devoid of grace. There are a few residual high quality people involved. But the intellectual and moral contortions required for a Democrat to build a career on the national level are so vast that the number of these high quality people will drop unless something is done.

In the long run, that cannot be good for the Republic - but that's a problem for the liberal movement. In the short run there is a lot of legal and constitutional damage that needs to be unpicked.

And a few points for Brits. The abolition of Roe v Wade does not mean the abolition of abortion, just the return of the issue to the states. The attack on affirmative action is not an attempt to discriminate against minorities (some of the biggest losers due to affirmative action are minorities of Asian origin). The arguments over gay marriage are not focused on attempts to bias the legal structures against homosexuals - simply over the fact that the political consensus required to make such a change simply isn't present yet. And so on. When reading about these issues, it's important to bear that in mind. British conservatives may not always agree on every policy issue with their Republican counterparts... but they are a lot closer to our way of thinking than their Democratic colleagues.

Meantime... Welcome Justice Alito. May you grace the bench for many many years.
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