The Besieged Border Between Politics, Ethics

This Fourth of July weekend is a particularly apt moment to recall that the spiritual legacy bequeathed to us by the Founders was not an established church but constitutional government.

As a consequence, we rely upon our courts, with judges and legal advocates, to resolve our deepest conflicts of rights and values.

This is a difficult and divisive moment in the history of our constitutional government. Ten years of conservative government have produced a U.S. Supreme Court seemingly determined to overthrow existing legal doctrine. During the term just concluded, it overturned an astonishing five precedents in rulings that, among other things, will reduce the right of habeas corpus to a smoking ruin and allow states to execute individuals simply because their incompetent lawyers miss a procedural deadline by a few hours. Other precedents, including some of those governing freedom of speech, separation of church and state and a woman’s right to obtain a legal abortion also appear likely to fall.

But, as in so many matters touching the court and its history, the reaction of thoughtful people to these facts and possibilities is far from predictable. I spoke with two such people this week:

Henry Schwartzchild, a participant in many of the civil rights movement’s most celebrated struggles, is director emeritus of the American Civil Liberties Union’s capital punishment project. A pointed critic of the Rehnquist court, he also believes that the Senate’s inquiry into Supreme Court nominee Clarence Thomas’ beliefs cannot be substantively open-ended.

James G. Hanik is professor of philosophy at Loyola Marymount University and associate editor of the influential New Oxford Review. He is deeply involved in Operation Rescue, yet argues strongly that Thomas--who has expressed anti-abortion convictions--ought to be forced to make them explicit during his confirmation hearings.

“I’m afraid this country is becoming a rather nasty and bitter place,” Schwartzchild said. “But, I think that when it comes to the confirmation of Supreme Court justices, civil libertarians--who are obliged to try to be neutral about process--are constrained by a sense that the President is the only official selected by all the people in a national election. As such, he is entitled to have around him people of his own persuasion, so long as they meet some standard of general competence.

“For example, the people have elected a President from a party whose platform was explicitly committed to overturning Roe vs. Wade. So why are we surprised that Bush’s nominees believe this? What is the nature of our complaint--that we don’t like it? Sure, and we didn’t vote for him, either. But we were outvoted.

“So, liberals and civil libertarians carry around a bad conscience about this whole process of selecting and confirming Supreme Court justices. Yes, we find the (Antonin) Scalias and the (Anthony) Kennedys and the (David) Souters unbearable, but how would you have had that different?

“Is it really just the case that it’s our ox lying there slashed and bleeding on the slaughterhouse floor? I’m not sure what the answer is. I’m still struggling with these questions.”

Hanik, whose thinking is similarly nuanced, nevertheless argues that “any kind of neat or tidy distinction between ethics and politics just doesn’t work. Both are part of a continuum.

“I sometimes read transcripts of the questioning of people being vetted for various offices and find them saying, ‘I have no views on the matter.’ When the matter involves some substantive moral question, you’re left to wonder how that is possible.

“You find, for example, Catholic candidates saying things like, ‘I cannot imagine a conflict between the law and my religious beliefs.’ Either they have a weak imagination or they have negligible religious beliefs or they haven’t paid attention to the 20th Century.

“If the idea of a so-called ‘litmus test’ amounts to a single question on a single issue, then that is a mistake. But if it amounts to acknowledging that ethics and politics form a continuum and that both address questions of justice, then people ought to be asked about them.

“If you can’t ask a judge to tell us what his or her convictions are regarding fundamental questions of justice, who can you ask?

“Subterfuge and furtiveness on these questions simply add further to the bizarre and artificial character of our politics and government. For example, while I’m happy to have Souter’s vote on pro-life cases, I would not have voted to confirm him unless he was willing to open his mouth on this question. I agree with Camus, ‘What we need are people who speak up clearly and pay up personally.’ ”

Schwartzchild, though he supports legalized abortion, believes that nominees may rightly resist such questioning, even though their motives for doing so are transparent.

“They will say with a certain coloration of reason that they are not going to permit themselves to be forced into deciding cases before they arise before them. That, in fact, would be entirely reasonable were it not also entirely clear that this Administration would not pick a nominee unless his position were entirely predictable.

“The issue before liberals and civil libertarians is on which neutral principles do we have the right to oppose the nomination of a guy like Thomas? We disagree with him profoundly, but the people elected the President who nominated him. The question is: Does the victor in these political struggles have an obligation to make some room for dissenting voices? I would think so, if only out of consideration for the civility of the democratic process.”

Perhaps out of consideration for its quality as well. As constitutional scholar Ronald Dworkin has pointed out, the rigid ideological criteria applied by the Reagan and Bush administrations to the selection of all federal judges are unprecedented in American history.

The implications of this dogmatism’s imposition on the Supreme Court, the cathedral of our democracy, present a profound dilemma.