Saturday, July 05, 2014

Glen Tomkins 07.05.14 at 5:04 pm

” It’s really not realistic to suppose women will be more immune to the symbolism of the drama than conservatives themselves, however it plays out in terms of provision of birth control to women who need it.”

Actually, yes, they almost certainly will get away with energizing their base with the symbolism, while not energizing our base with the symbolism.

The other side makes an effort to tie ideology, with its drama and symbolism, to practical politics. Their voters understand, as a result of this effort, that if they want these victories for their side to continue, they need to show up at the polls in November to vote for R Senators to insure that their party will continue to control the court into the indefinite future. An R majority Senate will keep Obama, or any D who makes it into the WH in 2016, from appointing a Kennedy or RBG replacement, and it will keep the Ds in the Senate from blocking an R president’s replacement for either of these two.

Had our side been equally attentive to the need to connect politics with ideology, the same practical political considerations would motivate voters who don’t want these Federalist Society/Opus Dei victories to continue, to show up at the polls in November to vote for D Senators, so that no successor to Kennedy or RBG would make it past a D majority, and no R majority in the Senate could block a D president nominee from becoming the fifth vote that would overturn these victories for the other side. Unfortunately, the more attentive the voter inclined to vote for our side is, the more clearly he or she will understand that voting for a D Senator this November will not in any way affect the composition of the court. We don’t believe in litmus tests, and our Senators will absolutely not vote to keep a nominee off the bench just because of a prior record of being Opus Dei or Federalist Society.

I understand that people on our side have noble reasons for not wanting to politicize the courts. We tend to believe in this ideal of courts that are insulated from the political pressure the other branches are subject to, and are therefore more free to comfort the afflicted and afflict the comfortable. But precisely the deference this ideal has generated has, by making it taboo for our side to even consider limiting the courts, made SCOTUS the one unchecked, unlimited center of raw political power in our system. Of course the other side made it a generation-long project to take over that commanding height of current US politics.

The other side controls the court. They, correctly, see this in terms of power politics. However correct and intellectually devastating the critique we might devise of their recent decisions in terms of legal and logical argumentation, such critiques miss the point that the less intellectually defensible their decisions, the clearer the assertion of power. We’re not going to bring any of the junta that controls SCOTUS over to sense and reason by the power of superior argumentation.

Worse, much worse, we’re not going to get people to the polls in November, by fighting the easy battle, out arguing people who aren’t very bright anyway, but aren’t even trying, since they know perfectly well that they are in power and don’t have to justify their decisions.

If our side wants voters on our side to come out this November and vote for our politicos, we need to be able to tell them how their votes will give us the power to fight the power that the other side is exerting through their control of SCOTUS. I’m not even going to try to suggest that our side should come out for impeaching Scalito, or limiting SCOTUS jurisdiction by law. Baby steps. But can we at least talk about litmus tests, please? Can we even talk about allowing our side to vote against nominees who belong to organizations overtly committed to overturning big chunks of settled law in general, and, in particular, the availability of contraception? Can we start a discussion from litmus tests over the availability of contraception that makes it very clear, by creating a controversy, that the continued availability of contraception is under threat unless people show up in November to vote for Senators who will impose that very litmus test?

For once, can our side choreograph the symbolism and drama to help make the point that our politicos need to be given some power this November? That point won’t make itself, because the key element lacking is not that our side isn’t right on the issue, it’s that our side is not willing to use the power the Senate has to block nominees.

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