The Elephant in the Courtroom

All day the news sites and poli-punditry blogs have been gleefully speculating about the Supreme Court nomination expected from Pres. Bush this evening. This is obviously good sport for the legal crowd; I am reminded of sports fans loudly debating who will make it to the Series, or the All-Star team. These vacancies don't come up often so we'll forgive the court-watchers their exuberance.

Time was when this would have been a lawyers-only party; the rest of the country looking on with a vague and bemused interest, much like watching a debate over who will win the Nobel prize in mathematics. We would be glad that the experts in the field were so attentive to the question, and discussing it with such vigor, and at the same time thankful that we were excused from participation. We are not so fortunate these days.

A Supreme Court appointment has become one or the defining events of a presidency (similarly, the career of a Supreme Court justice these days will be largely defined by his or her nomination battle). There is a theory, one that I have not seen convincingly supported, that the future of the republic is determined, in a significant way, by these appointments, and the various partisans array themselves accordingly, fully prepared for all-out battle. Reports during the day indicated that groups were scrambling to purchase rights to memorable URL's for use in opposing whichever nominee was favored in the rumor mill. They could save themselves trouble and money by registering "opposeallbushnominees.com" which is a more accurate representation of their position. Court confirmations have acquired much of the feeling of campaigns.

I wonder which comes first, political judges or a politicized appointment process? It's a chicken vs. egg sorta question. In any case, the nomination of a justice to the top court is a major skirmish in the on-going war between "our guys" and "the other guys." Everyone with a stake in Washington politics will be taking a position and fighting for it, if only to keep up appearances. I get emails from political groups across the spectrum (it's wonderful being a centrist!) and the lines were well drawn well before the nomination. I've been getting regular missives urging me to contribute to the fight to stop the evil [unnamed] appointee, along with equally apocalyptic messages warning me that this nominee, whoever it was, was undoubtedly critical to the future. I've also been cautioned that a blocked appointment or worse, nomination of a moderate, would signal the end of all that we hold dear (or some similarly emotive but undefined phrase.)

As of a few minutes ago we have the name of the nominee. I have no clue who John Roberts is, except that the early reaction is that he will be tough to fight. Apparently he has denied his opponents the fuel for their fire. If he can avoid being cast as a monster I say bravo; how thrilling to be left discussing a candidate's legal expertise. He will be seen as a daring choice for Bush, because he is a member of a hated minority (middle-aged white guys) but folks think he's smart and may be able to answer questions without threatening to bomb Mecca or some other embarrassment. I note that he is very nearly my age, which makes me feel very old.

In the coming weeks every word Roberts has ever published will be scrutinized. His thinking on a number of important subjects will be reviewed, including the currently hot topic of federalism, property rights and personal freedom. These issues are important to the country and the court, but none of them are going to be important in the confirmation hearings. Only one issue really drives this desperate fights for every seat on the bench. Some will insist that the struggle is not driven by Roe v Wade and the abortion question, but then some folks insist that the civil war was not really about slavery. The abortion question is the light by which all the other issues are considered.

Earlier this year, when filibusters of lower-court nominees were the top news item, David Brooks wrote in the New York Times that the Roe v. Wade decision has "slowly poisoned American politics." (The NYT would like you to purchase access to articles in the archives, so I'll just link to my original post.) Whatever your feelings about abortion rights in general, we ought to be able to agree that making abortion a constitutional issue has had a ripple effect through the judiciary and beyond. As the Chicago Tribune pointed out last week, there is little likelihood that abortion rights will be significantly abridged in the US anytime soon. And yet the Supreme Court justices are now grilled in hearings, and either approved or rejected, on the basis of an issue that they very likely will not face in their careers on the court. I have a suspicion that if Roe was overturned the reaction a couple of years later would be wonder that we ever cared that much about it. The Left's fears of widespread enslavement of American women with the loss of Roe are no more realistic that The Right's dreams of moral rebirth and the end of easy sex. Life would go on much as it has in the years since Roe v Wade.

I think it could be argued that the cultural impact of abortion has been, and still is, much smaller than the ever expanding impact of Roe v. Wade. That case, and the continuous battle to preserve it, is the slow poison that makes judges the subject of the 24/7 news analysis business.