During the recent, raucous debate in the U.S. Senate over what’s procedurally kosher in considering a president’s judicial selections, opponents of several Bush nominees persistently dismissed the prospective judges in question as “extremists.” My colleague at the Ethics and Public Policy Center, Ed Whelan, thereupon proposed a thought experiment:
Imagine that a Democratic president nominated for the federal bench a judge who had suggested that there was a constitutional right to prostitution and a constitutional right to polygamy; who had proposed abolishing Mothers’ Day and Fathers’ Day, substituting an androgynous “Parents’ Day”; who had advocated abolishing same-sex prisons, on the grounds that male prisoners returning to a work environment in which men and women are equal could learn to deal respectfully with women in co-ed jails; and who, while arguing that “manifest” racial imbalance in a company’s work force was de facto evidence of deliberate racial discrimination, had never, while working in the private sector, employed a single African-American (in a majority-black city) in more than 50 hires.
Would any Democratic president nominate to the federal bench a jurist with views like this — views that are, by most understandings of the term, “extreme”? Or, if a Democratic president would attempt such a nomination, surely some Senate Democrats would object — not to mention Senate Republicans, who would certainly use the filibuster and every other legitimate legislative tactic to stop such a nomination. Wouldn’t they?
Well, not quite.
For the not-so-fictional nominee in question here is none other than Ruth Bader Ginsburg, current associate justice of the United States Supreme Court, who was confirmed by the U.S. Senate on a 96-3 vote, having taken every one of the positions noted in Ed Whelan’s thought experiment.
“Extremism” has become code in certain circles for any potential federal jurist who is convinced that Roe vs. Wade and Casey vs. Planned Parenthood got it wrong when they discovered a “right to abortion” in the U.S. Constitution. According to the jurisprudence of Roe and Casey, one class of Americans has the constitutional power to execute lethal violence on another class of Americans. According to the Supreme Court’s interpretation of Roe and Casey, the “right” to an abortion trumps virtually every other constitutional right. But these aren’t thought to be “extreme” positions.
When the Supreme Court gets it very wrong on a very important matter, the mistake acts like a toxin, poisoning virtually our entire public life. Dred Scott got it seriously wrong, and public life deteriorated to the point of civil war. Plessy vs. Ferguson got it seriously wrong in declaring segregation constitutional; decades of poisoned race relations, logjammed Congressional initiatives and distorted presidential politics followed. Roe and Casey, which got a fundamental question of justice just as wrong as Dred Scott and Plessy vs. Ferguson did, is having precisely the same effect: It is poisoning other aspects of our public life.
That is why politicians who defend a legal “right” to abortion, be they Catholic or not, must not be honored by Catholic institutions, including Catholic universities. These politicians are wrong on the great civil rights issue of our time.
Failure to recognize the injustice of Roe and Casey and their distorting effects on American democracy is the real extremism.
George Weigel is a senior fellow of the Ethics and Public Policy Center in Washington, D.C. Click here to read his other recent columns on the Web site of the Archdiocese of Denver.