Roe, Partisanship and the Simplicity of David Brooks

In Today's New York Times, columnist David Brooks posits that the reason for the bitterness of judical nominee confirmation process is Justice Blackmun's opinion in Roe v. Wade. Not to stir up debate on abortion, but Brooks is smoking dope if he truly believes that one judicial opinoin has cause the rancor on the Senate Judiciary Committee.

Brooks begins with a solid jumping off point, that a Supreme Court decision removed from democratic debate and decision the issue of abortion. By declaring it a right, limited and closely circumscribed as the right was, the Supreme Court ensured that the issue would be hotly debated for decades to come. But, in defense of the Court, they had to decide the case before them--that is their job.

When Blackmun wrote the Roe decision, it took the abortion issue out of the
legislatures and put it into the courts. If it had remained in the legislatures,
we would have seen a series of state-by-state compromises reflecting the views
of the centrist majority that's always existed on this issue. These legislative
compromises wouldn't have pleased everyone, but would have been regarded as
legitimate.

But Brooks premise that the Roe decision has caused the rancor in the Senate Judiciary Committee is, put plainly, just silly.

Each nomination battle is more vicious than the last as the methodologies of
personal destruction are perfected. You get a tit-for-tat escalation as each
side points to the other's outrages to justify its own methods....At first the
Senate Judiciary Committee was chiefly infected by this way of doing business,
but now the entire body - in fact, the entire capital - has caught the abortion
fight fever.

A few causes of the partisanship of the Senate Judiciary Committee are as follows:

1. The Committee has no natural constituencies like say the Finance Committee or the Commerce, Science and Transportation Committee. Thus, with no natural constituencies that can provide the all import campaign funds, the Committee does not attract Senators prone to compromise.

2. Because of the nature of the work of the Judiciary Committee, the committee is likely to attract those interested in the law, with all their prejudices and biases about how law should be written, interpreted and enforced.

3. The Committee itself is an arena with gladiators forged from the extremes of their party. If you don't believe, look up the press surrounding the elevation of moderate Arlen Spector to the Chairmanship.

4. The Committee is seen chiefly as a place to score political points with your base rather than with the broader electorate. Even when Justice Scalia, a noted and unabashed judicial conservative, we was confirmed 98-0 by the Senate.

5. C-SPAN and 24 hour news--public statements are now truly public and immediate--end of story.

6. The polarization of America into Red and Blue states means that most Senators come from states that are ovewhelmingly dominated by one political persuasion, a factor evident from the membership of the Judiciary Committee.

To say that the Roe decision is a root cause of the partisanship to fail to understand the fundamental nature of the Judiciary Committee within the larger Senate and the larger nature of our country.


Roe's Birth, and Death