Roe's Birth, and Death

NY Times ^ | April 21, 2005 | DAVID BROOKS

[neverdem]

OP-ED COLUMNIST

Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.

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.

Instead, Blackmun and his concurring colleagues invented a right to abortion, and imposed a solution more extreme than the policies of just about any other comparable nation.

Religious conservatives became alienated from their own government, feeling that their democratic rights had been usurped by robed elitists. Liberals lost touch with working-class Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views. The parties polarized as they each became dominated by absolutist activists.

Unable to lobby for their pro-life or pro-choice views in normal ways, abortion activists focused their attention on judicial nominations. Dozens of groups on the right and left have been created to destroy nominees who might oppose their side of the fight. But abortion is never the explicit subject of these confirmation battles. Instead, the groups try to find some other pretext to destroy their foes.

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.

Every few years another civilizing custom is breached. Over the past four years Democrats have resorted to the filibuster again and again to prevent votes on judicial nominees they oppose. Up until now, minorities have generally not used the filibuster to defeat nominees that have majority support. They have allowed nominees to have an up or down vote. But this tradition has been washed away.

In response, Republicans now threaten to change the Senate rules and end the filibuster on judicial nominees. That they have a right to do this is certain. That doing this would destroy the culture of the Senate and damage the cause of limited government is also certain.

The Senate operates by precedent, trust and unanimous consent. Changing the rules by raw majority power would rip the fabric of Senate life. Once the filibuster was barred from judicial nomination fights, it would be barred entirely. Every time the majority felt passionately about an issue, it would rewrite the rules to make its legislation easier to pass. Before long, the Senate would be just like the House. The culture of deliberation would be voided. Minority rights would be unprotected.

Those who believe in smaller government would suffer most. Minority rights have been used frequently to stop expansions of federal power, but if those minority rights were weakened, the federal role would grow and grow - especially when Democrats regained the majority.

Majority parties have often contemplated changing the filibuster rules, but they have always turned back because the costs are so high. But, fired by passions over abortion, Republican leaders have subordinated every other consideration to the need to overturn Roe v. Wade. The Democrats, meanwhile, threaten to shut down the Senate.

I know of many senators who love their institution, and long for a compromise that will forestall this nuclear exchange. But they feel trapped. If they turn back now, their abortion activists will destroy them.

The fact is, the entire country is trapped. Harry Blackmun and his colleagues suppressed that democratic abortion debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you can't stop the escalation of conflict in the middle. You have to kill it at the root. Unless Roe v. Wade is overturned, politics will never get better.

E-mail: dabrooks@nytimes.com

[Valpal1]

I believe the writer is absolutely correct. The poisonous political atmoshpere is a direct result of judicial usurpation and tyranny.

[swilhelm73]

Dozens of groups on the right and left have been created to destroy nominees who might oppose their side of the fight. But abortion is never the explicit subject of these confirmation battles. Instead, the groups try to find some other pretext to destroy their foes. 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.

Which is why the Republicans borked Ginsburg. Oh wait, the Republicans let Clinton stick two far leftists on the court without much fuss now that I think about it.

I understand why Brooks dissembles here, in an otherwise good article, what with the target audience, but this is just too much.

[MHGinTN]

"That doing this would destroy the culture of the Senate ..." I'm sorry, but if obstructing and trumping up allegations (both behaviors now predominating the democrap party methodology), lying and shouting secular dogma is 'culture' then the best thing that could happen to the useless body (the Senate) is to be flushed into the obscurity it deserves. Of what validity is the 'Sinate' if a thing like Hatellary Rodhamster can be elected to the Senate as the first political office of her public life? I mean, what were New Yawkas thinking? What a decline in discernment, from Moynihan to clinton!

[Torie]

Man the guy must be reading my posts. He's seen down laser like to the very core of the rot.

[neverdem]

Oh wait, the Republicans let Clinton stick two far leftists on the court without much fuss now that I think about it.

So much for trying to be the nice guys.

[MHGinTN]

BTW, the following is just a stupid falsehood (a lie by any other name) that paints Republican Senators as hopeless rightwingers: "But, fired by passions over abortion, Republican leaders have subordinated every other consideration to the need to overturn Roe v. Wade." It doesn't even appear to be the reality much less BE the Truth.

[Torie]

Brooks is trying to reach to an audience not naturally friendly to the pro life cause in general, and get them to think more reflectively about the true legacy of Roe. It is more than just about abortion, much more. It is poisoning our public square. One of my liberal brothers now gets that, due to my influence. It is time to influence more, many more, on the other side of the political divide. That is a great piece, and I think will prove to be an influential piece, which will reverberate, and generate discussion in all quarters. We shall see.

[neverdem]

I mean, what were New Yawkas thinking? What a decline in discernment, from Moynihan to clinton!

Many New Yawkas have left the state. The dems have a 5 to 3 advantage in registered voters over the pubbies, IIRC. That's the main reason we have Hillary. That and Schumer beating D'Amato by about 11 percent in 1998. The place is just about hopeless now. Putzhead got about 70 percent of the vote last November.

[MHGinTN]

Two states through which I will not travel (and darn sure wouldn't have as a destination) are Florida and New York. New Jersey is about to get added to that list, too.

[hinckley buzzard]

Class notes from the hive.

The Senate operates by precedent, trust and unanimous consent...

We are in the quandary we are in today precisely because the Senate stopped operating "by precedent, trust and unanimous consent" when it was Daschle-ized.

Before long, the Senate would be just like the House. The culture of deliberation would be voided.

One of the great beltway howlers. The filibuster is designed precisely to PREVENT DELIBERATION.

In any case, there is no greater sham than the so-called great tradition of Senatorial debate. Votes are not changed by longwinded remarks because hardly anyone is in the chamber to listen, and those who are present are shuffling around cutting deals and generally ignoring the speaker.

I'd like to know when the last real debate, as opposed to an orchestrated kabuki dance, took place in the Senate. I'll bet it's been 50 years

[FreedomSurge]

Nice point. Brooks is not preaching to the choir. Keeping that in mind this is a brilliant piece.

[swilhelm73]

As I mentioned, I understand why he makes this statement. The readership of the NYT's editorial page is made up of those cheering on Democrat obstructionism.

But I think making the argument that both sides are doing it in order to get leftwing readers to consider his point is a fatal flaw. It allows them to hide the extremeness of the Democrats' actions behind a wall of "everyone does it" - which has so far been the only halfway rational defense I've seen them offer.

[Torie]

The Senate does not operate much by formal procedural rules. It can be tied up in knots if one side chooses to do so. It is an idle threat because public opinion won't stand for it though. The key point however, is just how damaging this is to the judiciary, the selection of the judiciary, and the supression of other matters over this now litmus test matter. That is the point to be made to liberals. It should have resonance, because it is true, and the fruit from the poisonous tree is there for all to witness. Roe has severely damaged and degraded the functionality of the public square. Moveover, it opened the Pandora's box to SCOTUS just doing it on other related matters.

As someone who is somewhat moderate on some matters, I preceive and regret all of this very deeply. It is not good for the country I deeply love and admire. It is not and should not be a matter of partisanship.

[MHGinTN]

During the last Partial Birth Abortion ban debate. Prior efforts to pass the ban were not really opposed by the deathocrats because they had clintoon to veto it, but when it came up with Bush in the White House, it was put up or shut up time for the democraps' leftist base, so things like Boxer, clinton, Harkin, Lautenberg revealed their slavish defense of the indefensible, lying dissembling, and generally lusting for continued 15,000 per year such slaughters.

[Torie]

The focus is on Roe, not to make RNC talking points. All roads lead to Roe. That is the Brooks message. It should not be allowed to be deflected by extraneous, peripheral, and in the end, rather unimportant matters. Just as Lincoln focused on just one thing, so should we, on this aspect of the public debate.

[section9]

Spot on. Think of the Constitution as a Shakespearean Play. When the king is murdered, the Chain of Being is disrupted, and all sorts of mayhem ensues. So it was with Roe. Roe stripped the right to decide the issue from the people's lawful representatives and sent it to an imperial court. The country has not been the same since.

Brooks is saying to the libs that it is this one decision, taken out of the proper hands of the state legislatures, that has poisoned our politics for a generation. Naturally, as a salve, he must place a pox on both houses.

Brooks' proposition is properly radical: return Roe to the states. The liberals, however, are wedded to the 1970's collectivist thinking that led them to a one-size-fits-all abortion argument anyway. The country is not, however.

[L`enn]

I, being from NY, will remain silent on the NY portion of what you said, but I totally agree with you about Florida. It is like every deviant, scumbag, sex offender, ne'er-do-well, eminates, or ends up in Fla. At least in Cali they have the good sense to congregate in the Bay Area.

[swilhelm73]

Quite the contrary, which is the article's essential flaw. Roe is indeed blamed, and correctly so, and then a few sentences later we get the cycle of escalation argument - giving the Left an out. In fact the specific out they've already claimed.

This is especially ridiculous given that Brooks knows as well as you and I that there has been no such escalation on the part of the right, as evidenced by Justices Ginsburg and Breyer.

[Torie]

Ginsberg and Breyer would not get the votes now. Now the game is for keeps. Indeed without eliminating the supre majority requirement, it's enduuring vacancy city. That is what this entropic exercise has lead us to.

[Banjoguy]

why Florida?

[shibumi]

"Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American."




I question the use of the word "inadvertant".

[atomic_dog]

Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American.

In regards to damage done, he's not even a pimple on the ass of Woodrow Wilson.

[swilhelm73]

Ginsberg and Breyer would not get the votes now.

Well, I can't say I agree with that statement. If we had a President Kerry or Gore nominating another leftist SC judge today, I don't see the Republicans in the Senate even voting him down, let alone filibustering him.

[Torie]

We disagree on that one.

[swilhelm73]

Just to statsify my curiosity, do you believe the Republicans in the Senate would vote down a leftist judge, or that they would go as far as to filibuster one if he had the support of the majority of the Senate?

[Torie]

The latter.

[swilhelm73]

Well, indeed we do disagree significantly then. I should note, however, that I am postively thrilled this scenario remains no more then a hypothetical for the next 4 years at least.

[lainde]

he is right...

[Qwinn]

I'm staggered at the amount of support this article is getting. It's good until about halfway through - I totally agree on his position RE: Roe, but then he completely misrepresents reality in an attempt to be "fair". It's as RINO as you get.

The first five paragraphs are fine - even great. But then:

Dozens of groups on the right and left have been created to destroy nominees who might oppose their side of the fight. But abortion is never the explicit subject of these confirmation battles. Instead, the groups try to find some other pretext to destroy their foes.

Can someone tell me what "groups" have been created to destroy -leftist- nominees, using "other pretexts" than their stated positions? Somehow I've managed to live through the last couple of decades without witnessing a Borking of a leftie judge. True, some of those years I wasn't paying much attention, but I think I would've heard about it by now since I've been paying close attention for the last five.

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.

Again - bull. Yes, each nomination battle is "more vicious", but it's not a "tit-for-tat escalation", it's the Dems succeeding, escalating, succeeding, escalating, etc. Republicans have been far too timid to do anything even remotely similar. I wish it were otherwise!

Nothing too bad with the next couple paragraphs, but then:

In response, Republicans now threaten to change the Senate rules and end the filibuster on judicial nominees. That they have a right to do this is certain. That doing this would destroy the culture of the Senate and damage the cause of limited government is also certain.

Again - bullshit! How does changing the filibuster rules in -any- way "destroy the culture of the Senate"? Democrats have repeatedly changed the filibuster rules without "destroying the culture of the Senate" - why is it suddenly beyond the pale for us to do so? And how in GOD'S name does it damage "the cause of limited government"?

The Senate operates by precedent, trust and unanimous consent.

Yes, and the Democrats have pissed away all three - kinda ridiculous to blame the problem on the Republican response after the fait accompli!

Changing the rules by raw majority power would rip the fabric of Senate life. Once the filibuster was barred from judicial nomination fights, it would be barred entirely.

Huh? Where can I get some of what he's smoking? Changing the rules on judicial filibusters would have no effect whatsoever on legislative filibusters. Indeed, every precedent ever established reinforces the notion that the former is illegitimate and the latter is totally legitimate - no one would ever argue that a legislative filibuster was "unprecedented" or somehow not a part of "Senate culture", so on what basis would those rules be changed? I can't imagine any support for such a statement from Brooks beyond knee-jerk adoption of fraudulent leftist talking points.

Every time the majority felt passionately about an issue, it would rewrite the rules to make its legislation easier to pass.

What crap! How can he keep this up? This rule is being changed because it's been abused in a completely unprecedented way - Brooks acknowledges that way early on. That motivation wouldn't excuse changing any other rule I can think of. Maybe if the minority were to find another rule and start distorting and twisting it beyond it's intent... and if that's the case, then it -should- be changed too. But rules used as they always have been, within their initial intent, are going to start falling like bowling pins? Brooks's argument here is pure Chicken Little sophistry, indistinguishable from that of the typical far-left windbag.

Before long, the Senate would be just like the House. The culture of deliberation would be voided. Minority rights would be unprotected.

Just like the House?! OH MY GOD! THE HORROR! Even his "doomsday scenario" is a staggering bore.

Those who believe in smaller government would suffer most. Minority rights have been used frequently to stop expansions of federal power, but if those minority rights were weakened, the federal role would grow and grow - especially when Democrats regained the majority.

Ah yes, the way "minority rights" were preserved through the Democrat filibuster of the 1964 Civil Rights Act? It cuts both ways, genius. And again - I'm unaware of any time in history in which a judicial filibuster was used to protect "minority rights". Stop deliberately confusing judicial filibusters with legislative filibusters, idjit. It's a crock, but it's the leftist crock. Why is Brooks spreading their meme for them?

Last point - Democrats will throw out and manipulate every rule in the world when they're the majority - heck, they did - and nothing Republicans do or don't do will change that. Brooks is far too naive if he believes otherwise.

Majority parties have often contemplated changing the filibuster rules, but they have always turned back because the costs are so high.

FALSE! Democrats have -often- changed filibuster rules when it was convenient to them. And besides, as you yourself noted, there was never a -necessity- to change these rules because never before were they used to permanently block up or down votes! Now they are! Don't acknowledge that all previous precedents has been broken, and then insist we must react the way we always have before.

Ah, I've had enough. Everything after the fifth paragraph is Grade A Prime BS... can't stomach any more.

Qwinn

[leprechaun9]

In the 1993 budget battle in the Bob and Billie Club (formerly known as the U.S. Senate), the leading expert on the constitutional authority of the Senate, KKK Byrd stated that only 50 votes were required to cut off debate because the Budget is only a game plan, it never becomes law! The 60 vote Senate requirement to cut off debate ONLY applied to legislation, i.e., those items which, if passed by both houses and signed by the President, become law.

When do the nominations of the President become law?

[1_Of_We]

Oh Puleeze! Surely you wouldn't presume to confuse the issues with facts?!? </sarcasm off>

[jwalsh07]

Man the guy must be reading my posts. He's seen down laser like to the very core of the rot.

Oh yeah. You're commentary on the the courts poisoning the public discourse years ago stands as some of the best analysis I've read on FR.

So good that I've adopted it as my very own. :-}

[MamaLucci]

Excellent analysis of this piece by Brooks......he almost hit the bullseye.

[aculeus]

Rule by Lawyers ... in Black Robes.

[Dogrobber]

The poisonous political atmoshpere is a direct result of judicial usurpation and tyranny.

More than I oppose abortion (and I oppose it most strenuously) I detest the "Roe v. Wade" decision. It is the rankest exercise of raw judicial power and has no basis in Constitutional law. It reflects the Judge's personal view on what the law should be, not what the law is. It is an evil compromise more akin to Dred Scott than any other. It will go down in history with that decision and with separate but equal - bad law reflecting a breach of Judicial ethics and propriety.

Those that do not see that should be examined to determine if their agenda also includes other acts of judicial imposition of unpopular issues; these are the people who will not shirk from the raw use of power masked by some trick or shield to hide their intention.

[r9etb]

You have to kill it at the root. Unless Roe v. Wade is overturned, politics will never get better.

It's too late, even if Roe v. Wade is overturned.

[BibChr]

Good essay.

Dan
Biblical Christianity BLOG

[HolgerDansk]

An ounce of truth does not a pound make.

What Brooks says about the Supreme Court poisoning the political process has long been acknowledged by Conservatives. However, he then goes on in passioned defense of the filibuster, even claiming that it somehow leads to limited government, another Conservative icon.

This is a piece that is designed to play on the sympathy of Conservatives, plain and simple. What he's missing is the obvious: the only way to undo the damage done by Blackmun et al is to overturn Roe, and the only way that's going to happen is via the Nuclear Option.

[Dataman]

From an unlikely source, too.

[soundandvision]

Does anyone really think that this would ever be possible? To overturn Roe vs. Wade and have a dialog within the legislative branch about how to go from there?

Odds anyone?

[soundandvision]

I think David Brooks dead on here.

[wagglebee]

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.

This is the most accurate (and actually unbiased) editorial I have ever read on the legal implications of Roe v. Wade. The issue never should have been taken out of the individual state legislatures, and he lays out the arguments perfectly.

[Caleb1411]

. . .That doing this would destroy the culture of the Senate and damage the cause of limited government is also certain. The Senate operates by precedent, trust and unanimous consent. Changing the rules by raw majority power would rip the fabric of Senate life. Once the filibuster was barred from judicial nomination fights, it would be barred entirely. Every time the majority felt passionately about an issue, it would rewrite the rules to make its legislation easier to pass. Before long, the Senate would be just like the House. The culture of deliberation would be voided. Minority rights would be unprotected.

Caleb reaches for tissue, moved to tears at the poignant pathos of this barbaric specter.

[BibChr]

Yes, there he's wrong.

Dan

[Caleb1411]

. . .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. Instead, Blackmun and his concurring colleagues invented a right to abortion, and imposed a solution more extreme than the policies of just about any other comparable nation.

But here he's ineluctably right.

[Tom D.]

What puzzles me to no end is the refusal of the Democrats in the Senate to wish secretly for the confirmation Robert Bork and those of his point of view. Overturning Roe would amount to a huge benefit for Democratic politicians. Suddenly, Republicans running for office are going to have to take a stand on where to draw the line on abortion. Now all a Republican running for a state legislature has to do is to talk about partial birth abortions and complain about activist judges. If Roe is overturned, suddenly Republicans are going to be faced with the very difficult political job of drawing a line somewhere between no abortions any time and partial birth abortions. I cannot think of any political question that is more likely to shatter the Republican voter base.

I do not understand why Democrats do not feign helplessness in light of the clear majority that the Republicans have in the Senate, confirm W's S. Ct. nominees (when he gets a chance), and help Roe go down the hole. This will allow Democratic Senators in red states vote to confirm and Democratic Senators in blue states to complain loudly, but act resigned to Roe's fate.

Once Roe is overturned, it will redound to the overall benefit of the Dems.

Of course, the Dems may be too stupid to do something like this.

[wagglebee]

Abortion is the single most divisive issue in American history, the left teach that slavery is the most divisive, but it isn't. Slavery, as an institution, was ALWAYS a matter for the states; the Supreme Court never made a ruling that would even hint toward a future abolition of slavery nationwide, because they knew what would happen. Most Americans personally despised the idea of owning another human being, even southern slaveowners; but most Americans also felt that it was not worth destroying the country for. Up to the Compromise of 1850, it was always the right of each state to decide to be slave or free, and it was always the right of the slave states to decide to abolish it.

However, none of this is true with abortion. The courts have taken this over and declared that the "right to choose" is the "law of the land," which in itself is ridiculous because courts cannot make "laws," they can only rule on them. When the SCOTUS ruled in Roe v. Wade it set America up for a bitter controversy, because at that point everything started to hinge on federal judges. The vast majority of elected lawmakers in both parties would love noting more than to NEVER have to cast a vote on abortion, because they realize that whatever the vote many will be angered. But many would love to see abortion on state referendums, because that way they are out of it. If the states could decide, I think that many if not most states would still allow abortion to varying degrees. Neither side would be happy about this, but both sides would be able to live with it -- and this is for one simple reason, IT WAS THE WILL OF THE PEOPLE.

[Evolution]

David Brooks is RINO pansy who is too scared to go nuclear on the Dems because he "respects the opinion" of "his friends" at the NY Times and PBS.

Brooks is just a whore for them to use just so they can claim they have a "conservative" voice.

Watching Brooks debate a liberal is like watching Bobble head just nod back and forth in agreement, only because he is to scared to take a stand.

[Evolution]

, IT WAS THE WILL OF THE PEOPLE.

The election of Hitler in Nazi Germany was "The will of the People"

Slavery was "the will of the people" in the South and so was Jim Crow.

Redistribution of wealth in Russia was "the Will of the people".

The "will of the people does" does not justify anything, that is why America is not a Democracy but a Republic, the people can be very apathetic and ignorant.

Abortion is muder and needs to be stopped whether through the a court decision or through the Federal legislature. I dont think wussy liberal Blue states will have the gumption to start a War over killing their babies.