Probably standing near the top of the list in many people's minds is “politics,” and it's the right answer as far as it goes. Beyond the level of political tug-and-pull, however, larger issues are at work accounting for the vicious struggles surrounding several Supreme Court nomination processes of recent years.
In brief, the nastiness that attended the nominations of Robert Bork, Clarence Thomas, John Roberts (to a limited extent), and Harriet Miers has its roots in that conflict of values and beliefs called the culture war. Making this take-no-prisoners conflict even more intense where the Supreme Court is concerned is awareness of the immense powers claimed and exercised by the court in modern times in shaping and reshaping American society.
To be sure, poor Miers was something of a special case, since her selection alienated movement conservatives uncertain of her qualifications and her views. But behind even this flap was that old conflict over basics, that is to say — the culture war.
What really was at stake in the Miers controversy was clear from the criticism that liberal pundits heaped on moral conservatives for wanting a nominee whom they could trust on abortion. Don't let them kid you — the pundits want exactly the same thing, with one key difference: they're pro-abortion and the moral conservatives aren't. This clash of values, with abortion at its heart, now has turned to Alito.
There's a useful analysis of the ideological background of this struggle in Rick Santorum's new book, It Takes a Family (Intercollegiate Studies Institute, $25). Santorum, junior senator from Pennsylvania and third-ranking member of the Senate Republican hierarchy, is a combative working politician, but he's also a reflective individual whose Catholicism here shows through.
The book speaks of two opposed versions of freedom competing for supremacy in the United States. One of these Santorum calls “No-Fault Freedom” — namely, the freedom “to be and do whatever we want.” That sounds unexceptionable until you realize that it's the kind of freedom underlying the arguments for things like no-fault divorce, same-sex marriage, and legalized abortion. In other words, it's the philosophy of “choice” at work.
No-Fault Freedom received classic formulation in 1992 from no less than Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter. In Planned Parenthood v. Casey, a case which upheld the 1973 Roe v. Wade decision legalizing abortion, the three announced: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and the mystery of human life.”
Pause for a moment and think about that. It's hard to imagine any kind of behavior by anyone who claimed to be defining his or her concept of existence which that pompous, hare-brained language would logically rule out.
The other kind of freedom identified by Santorum is liberty as it was understood by the founders of the nation. “Properly defined,” he writes, “liberty is freedom coupled with something bigger or higher than the self. It is the pursuit of our dreams with an eye to the common good.”
In recent decades, proponents of liberty that serves the common good have fought back against supporters of unconditional freedom of choice, with the Supreme Court a major battlefield. Politics and personalities are important in this struggle, but at bottom it's about philosophy. Culture wars are always like that.
Russell Shaw is a freelance writer from Washington, DC. You can email him at RShaw10290@aol.com.
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