Posted by Juan Non-Volokh:
Nuclear Harry:
Justice Harry Blackmun is ultimately responsible for ending the Senate
filibuster? That is what David Brooks suggests in [1]today's column.
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.
It's actually a serious argument (even if Brooks might overtstate the
case). Justice Blackmun's Roe opinion removed the issue of abortion
from democratic politics. The result, Brooks argues, is a rechanneling
of pro-choice and anti-abortion fervor into the fight over judicial
nominees. Instead of a series of state-by-state compromises over
abortion, there is one national, all-or-nothing battle in federal
courts, and each side has rushed to the brink of nuclear armageddon.
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.
Brooks is making a serious point, but I think it's a mistake to think
the war over judges is all about abortion. There are plenty of other
sensitive issues that judicial decisions have removed from the
democratic process, and plenty of pro-choice Republican Senators who
seek to end Democratic obstruction. It is also important to note that
overturning Roe, by itself, would not be a pro-life victory. All it
would accomplish is returning abortion poicy to the states, many of
which would never severely restrict, let alone prohibit, the practice.
Despite his hostility to Roe, Brooks is luke-warm about the nuclear
option, and I share his misgivings. The Democratic filibuster of
appellate judicial nominees is unprincipled and unprecedented, but so
too is the proposed Republican response. End the filibuster for
judicial nominations, and eventually it will disappear for substantive
legislation as well -- and that will not be a good thing. As Brooks
notes, "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." So killing the filibuster means confirming a few more
judges (and justices), but could also mean the further erosion of
limited government. That doesn't seem like such a good deal. Can we
really blame it all on Harry Blackmun?
References
1. http://www.nytimes.com/2005/04/21/opinion/21brooks.html?hp
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