The abortion reticence fallacy

Finally, someone in the mainstream media agrees with the point I've been making for years. The pro-business Republican elite will never ban Roe vs Wade because it is too useful as a wedge issue at election times.---BBB

washingtonpost.com
The Reticence Fallacy
By Michael Kinsley
Sunday, October 9, 2005; B07

Gosh, was it only a couple of weeks ago that Republicans were mocking attempts by Democratic senators to find out what John Roberts's views might be on some of the big legal issues? What happened to all those lectures about how it would be "improper" to call on a future justice to "prejudge" matters that might come before the court?

With President Bush's nomination of Harriet Miers, it turns out that Republicans don't want to buy a pig in a poke any more than Democrats do. They were bluffing when they claimed not to know or care about Roberts's views, beyond a vague commitment to avoid "legislating from the bench." They did care, but they thought they knew. The surprising conservative bitterness about Miers rein-forces the suspicion of many liberals that "they must know something we don't" about Roberts. Conservatives have been complaining about the Supreme Court for half a century. After a series of false dawns, this would seem to be their true moment. Would they really let Bush squander this opportunity? Apparently not.

Unless, that is, you buy the even darker conspiracy theory that Republican apparatchiks don't really want a counterrevolution at the Supreme Court. Roe v. Wade has been very good to the Republican Party, keeping social and religious conservatives at a full boil of resentment. The last thing the party needs is to turn these motivated activists into satisfied customers, while stoking a fire under activists on the other side. So there was a game of double bluff going on: The conservatives who bluffed that they didn't care about Roberts's views -- and liberals shouldn't either -- were themselves being bluffed, perhaps, by Bushies who assured them that Roberts was on their side.

In any event, someone has been had. Over the next several decades we will find out who. Meanwhile, conservative suspicions about Miers offer us an opportunity for a bipartisan end to the farce that judicial confirmations have become.

Robert Bork has said bitterly and often that his "paper trail" of strongly expressed views on big legal issues is what killed his 1987 Supreme Court nomination. Of course that same paper trail is why President Ronald Reagan nominated him in the first place. The Bork brouhaha is remembered as an appalling low point in democratic decency. But -- demagoguery on both sides aside -- it also was the last time our democracy had an open and reasonably honest debate about those big issues.

The way "advice and consent" has worked ever since is that presidents make their choice in private, based on any standard or evidence they wish. Then the Senate makes its decision in public, with as little to go on as can be arranged.

Roberts had a long and impressive paper trail, but he maintained successfully that most of it shouldn't count. Memos he wrote while in the Reagan Justice Department reflected official administration policy, you see, which a junior lawyer wouldn't presume to affect. And stands he later took as an attorney in private practice reflected the lawyer's obligation to mount a vigorous defense for his client. In both situations, it was said, you cannot assume that Roberts actually believed something just because he wrote it and put his name to it. That's what being a lawyer is all about.

Harriet Miers's filing cabinet, meanwhile, is so empty that journalists are fanning out in search of early yearbook inscriptions and letters home from summer camp -- anything with a clue about what she thinks. Hey, here's a thought: Why not just ask her? No doubt senators will try this when she testifies to the Judiciary Committee. No doubt she will reply with carefully measured generalities. No doubt she will graciously decline to get more specific, arguing the danger of prejudging future cases, politicizing the judiciary, etc. And no doubt she will get away with it. Unless Democrats and Republicans in the Senate join together and say: From now on you answer specific questions, or you don't get confirmed.

The widely alleged principle that judicial nominees should not comment on specific cases is based on a fallacy familiar to journalists from our own battles over objectivity: that not expressing an opinion means that you don't have one. In the case of judges, an absence of opinions is not just improbable -- it is undesirable. Anyone worthy of sitting on the Supreme Court ought to have thought about all the big issues and ought to have reached some kind of conclusion about them.

The anathema on "prejudging" also has a comically wide loophole: It doesn't apply to sitting justices. A few years from now, the views of Justice Roberts and potential Justice Miers will be known on a wide variety of important legal issues, just as the views of the other seven justices are known now. No one suggests that this fact disqualifies sitting justices from ruling on the same subjects in the future.

A viewpoint expressed at a confirmation hearing is not a commitment to vote a certain way. The specific facts of a case will always make a difference. A justice could even say that, upon reflection, she has changed her mind. Anyway, nothing can bind a Supreme Court justice to a promise about how she will vote. No other job in America makes it easier to ignore the terms of your employment.

No doubt the sanction of embarrassment would exert some discipline on future justices who strayed too far, too often or with too little explanation from the analysis and conclusions they offered at their confirmations. But that's okay. In fact, that's the idea. It's the least democracy can expect of someone who is about to be elevated beyond most of its constraints.