Published June 21, 2005
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 blasted the Boy Scouts and Girl Scouts for promoting gender stereotypes; 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 over fifty hires.
It seems almost too absurd. 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 v. Wade and Casey v. Planned Parenthood got it wrong when they discovered a “right to abortion” in the U.S. Constitution. Yet why is that judgment an “extreme” position? According to the logic of Roe and Casey, the thirty-some states who had laws protective of unborn human life prior to 1973 were violating the basic human rights of women in a fundamental way – but that isn’t thought to be an “extreme” position.” 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 (who happen not to have been born yet) – but that isn’t thought to be an “extreme” position. According to the Supreme Court’s subsequent interpretation of Roe and Casey, the “right” to an abortion trumps virtually every other constitutional right, including the right of free speech – but that isn’t thought to be an “extreme” position.
The Supreme Court can get it wrong on minor matters without doing serious damage to the Republic. But when it 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 v. 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 v. Ferguson did, is having precisely the same effect: it is systematically 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. Whatever their other accomplishments, they have no more business being honored by Catholic institutions today than an otherwise-laudable politician who defended the constitutionality of segregation would have been in the 1960s.
Failure to recognize the injustice of Roe and Casey and their distorting effects on American democracy is the real extremism.
George Weigel is Distinguished Senior Fellow of the Ethics and Public Policy Center in Washington, D.C. and holds EPPC’s William E. Simon Chair in Catholic Studies.