Is Civility Obsolete?

July 21, 2005

Conservatives hope that John Roberts’s confirmation process will be “civil” and that the Democrats, instead of trying to “Bork” him with concerted smears, will at least display the moderation Republicans showed when Bill Clinton named Stephen Breyer and Ruth Bader Ginsburg to the Supreme Court.

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They want a return to the old and courteous custom of giving the president his way on most judicial nominations.

This would mean going back to what used to be considered normal in American politics, after the mighty unpleasant episodes that ensued on the nominations of Robert Bork and Clarence Thomas. But don’t count on its happening. And maybe it shouldn’t.

The reason lies in the very logic of the situation. Consider, by analogy, terrorism. Our natural reaction to terrorist acts is indignation — a feeling that basic social and moral rules have been outraged. We feel, moreover, that suicide bombings that kill innocent people are not only fiendish, but irrational.

But what is “rational” depends on your goal. Many terrorists think that even suicide can serve their ends. From their point of view, observing old standards of humanity may seem irrational. They have decided to dispense with ordinary inhibitions that only frustrate their purposes.

In the same way, more and more liberals are deciding that it’s self-defeating for them to continue abiding by old senatorial traditions. And this may be a perfectly rational decision. Who says those traditions are holy?

In days of yore, the two major parties agreed that their differences were essentially minor and that for both sides, comity might be preferable to bloody victory. This state of affairs went on so long that it came to seem permanent, even natural.

[Breaker quote for
Is Civility Obsolete?: The Democrats' logic]

[Breaker quote for
Is Civility Obsolete?: The Democrats' logic]

But eventually the Democrats came to realize the tremendous power potential of the Federal judiciary. Aggressive or “activist” judges might change the most basic rules of American society through tendentious interpretation of the Constitution, without the bother of winning elections and passing legislation. So, especially after World War II, the courts began imposing a liberal agenda on myriad issues.

Most Republicans acquiesced in this. After all, they reasoned, it was the Supreme Court’s job to interpret the Constitution, even if they didn’t follow its reasoning or like the results. Their turn would come, if only everyone abided by the rules.

This peaceful arrangement lasted for decades, but the Republicans finally began to wise up after Roe v. Wade. Unfortunately for them, the Democrats noticed them wising up. And so, when Ronald Reagan nominated Bork, the Democrats saw what Republican control of the Court might mean: the repealing of all the liberals’ gains over two generations.

At that point, the long peace between the parties ended abruptly, at least on one side. The Democrats fought tooth and nail to block Bork and subsequent Republican nominees. (One of the finest, Douglas Ginsburg, went down in flames when the Democrats discovered, to their profound horror, that as an undergraduate, he’d smoked pot!) Still, when Clinton was elected, the Republicans showed they hadn’t wised up all that much. Applying the Golden Rule to politics — generally a grave strategic mistake — they let Clinton have his way with the Court.

For anyone who still didn’t get it, the 2000 election showed just how crucial control of the Court could be. George W. Bush’s victory came, quite literally, by a single vote. Today both parties know very clearly what the stakes are. And American politics will never go back to “normal.” Those days are over.

So it’s quite understandable that the Democrats may not want to lie back and let Roberts have a share of the Supreme Court’s arbitrary power for perhaps thirty years or so. No matter how nice he seems, no matter how professionally “qualified” he is, nobody can be really qualified to possess that kind of legal authority — the last word on how Americans shall live — for the remainder of what may be a very long life.

What lies just ahead? Maybe filibusters, calumnies, and Ted Kennedy diatribes — ugly stuff, all very distasteful, but such is the price of a system that saddles us with a puissant nine-member body beyond political control, beyond removal, and virtually beyond correction even when it acts most egregiously.

Joseph Sobran

Copyright © 2005 by the Griffin Internet Syndicate,
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