Dreher: Scalia & One Nation – TAC

The point I’m trying to make here is not that the Senate should do this or that, but that whatever it does, replacing Scalia in the current polarized atmosphere is going to tear our already frayed bonds even worse. How can anyone who cares about the country look forward to what’s to come? The result of the confirmation battle, whatever side wins, will be simply this: that we will hate each other even more across partisan lines.

It is, of course, bizarre that it has come to this for the nation: that the nomination of a Supreme Court justice could inspire such passions. But that’s because of the role the Court has taken in the culture war. This is the poisoned fruit of what Ted Kennedy and his Senate Democratic colleagues did to Robert Bork. And this is also the poisoned fruit of the culture-war results-oriented jurisprudence of the Court — especially Reagan appointee Anthony Kennedy — on abortion and same-sex marriage. It fell to Scalia, over and over again, to reveal the partisan emptiness of these rulings, and therefore how nakedly political the Court had become on defending the Sexual Revolution at all costs.

From: Scalia & One Nation | The American Conservative

{Via Jaybird}

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50 thoughts on “Dreher: Scalia & One Nation – TAC

  1. This is so Dreher; darn this polarization and hatred, damn those liberals and D’s for causing it. It took an acerbic conservative firebrand to show how bad it was. Oh and sex is scary.

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    • This is so Dreher”

      That’s the exact phrase that popped into my head when I was reading this.

      The whole thing really is pretty textbook Rod: Beautifully written, very well-thought out, containing a multitude of truths and clever observations — and yet somehow all centered around one single blindspot so glaring that it baffles me to wonder that a man of his obvious intellect is clearly so unaware if it.

      (In this case, the blindspot being that SCOTUS ruling against the things he dislikes being obvious jurisprudence and SCOTUS ruling against things he likes as being a purposeful poisoning of the court by the court, and it seeming to not occur to him that others might see it the opposite. I mean, I love the guy, but sheesh. Rod Dreher might well be the single least empathetic well-known writer I have ever read.)

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  2. So the Court’s Culture Warfighting was revealed as full of partisan emptiness by Reagan appointee Antonin Scalia, because it was led by Reagan appointee Anthony Kennedy?

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  3. Bork had an up and down vote even though the Senate might have examined for longer than usual and Ted Kennedy gave a very impassioned speech against him. He did not become a Supreme Court justice because the majority of the Senate thought that Robert Bork had no business being on the highest court. Robert Bork was not filibustered though. The man was complicit in Nixon’s conspiracies against the United States, opposed the 1964 Civil Rights bill, and Roe v. Wade. It should be a no-brainer that he couldn’t make it past a Democratic Senate anymore than Goodwin Liu could make it past a Republican Senate. The thing is that the Democratic Senate did give Bork an up and down vote.

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    • How should OT react to this, CK?

      This seems like the right response to a piece railing at Anthony M. Kennedy for being nakedly political and emptily partisan in his at-all-costs defense of the Sexual Revolution on the Court.

      Everyone at OT is free to speak up for this stuff, including the person who posted it, if a more balanced response would be more to your liking. If someone can explain to me how the Court could have addressed these subjects less politically, I’d be willing to listen.

      Failing that, is there a problem with what OT is?

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      • Michael Drew: This seems like the right response to a piece railing at Anthony M. Kennedy for being nakedly political and emptily partisan in his at-all-costs defense of the Sexual Revolution on the Court.

        When you, Mr. Drew, describe the piece as “railing at Anthony M. Kennedy,” then I’m prepared to check out of the conversation. The nearly 2,300-word piece briefly singles out Kennedy – “especially… Anthony Kennedy,” calling his “results-oriented jurisprudence” vacuous – then never mentions him again.

        It seems to me that the fixation on Kennedy is yours, not Dreher’s. I suppose you could mount an argument on why we should see Kennedy as the “real” object of Dreher’s implicit criticisms, but, even if you were somehow persuasive, it still wouldn’t tell us much about what Dreher says is most important to Dreher.

        So, as to how OT should respond to such a piece, I would say the same thing I would say to any individual or group responding to any elaborate, somewhat carefully made argument: only after reading it and sincerely attempting to grasp it on its own terms, and not by reacting reflexively to whatever minor elements of the argument in which one perceives a stake. Dreher writes about the fate of the nation, the fate of the conservative movement, and the meaning of Scalia to conservatives. The initial comments here focus defensively on partisan disagreements, while respondents congratulate themselves for their superior “empathy.” If “empathy” is the virtue we prize, then show it: “the ability to understand and share the feelings of another.” Do you see much of that going on with this reaction to Dreher so far – or ever at OT?

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          • That is a danger with Linkage items, but, if we’re going to proceed from a reaction to a quote or the argument encapsulated in it to an indictment of the author and every horse he ever rode in on, then it’s more fair to go to the full context. If you want to stick with the particular argument that, presumably, interested the harried Linkager, then it’s more fair to answer the argument without presuming it says very much about the author of “the piece” or the piece itself at all. The quote is, after all, just a piece of a piece, and the reference here to Kennedy is just a piece of that piece of a piece.

            I happen to think that there is a complex background here, and that this piece of a piece of a piece is of a piece with the piece it’s a piece of a piece of, but one can still usefully respond either to the particular argument on Kennedy or the whole piece without confusing them. On the particular argument as Dreher phrases it, I think there’s some (arguable) truth to it, but that “culture war” is too vague a term, too narrow unless it’s meant to encompass everything that the conservative movement stands for and has ever stood for – in which case the “sexual revolution” conventionally understood is only one part of it all.

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            • I regret using “the piece.” I certainly had the passage in mind, as I think it’s fair to suspect the majority of commenters did. (The railing at Kennedy in the passage, though, does establish that the piece rails at Kennedy, and also undermines the passage’s contention that the Court’s social issues jurisprudence is partisan.)

              I’m not much a fan of this picking out passages to quote and then criticizing people for reacting to them, rather than the piece. I didn’t realize that he point here is only to discuss the entirety of each piece linked rather than the passage. Especially in cases when the quote is effectively selected for maximum political trolling value. If we want the discussion to proceed from the most considered, reasoned arguments in a piece, start it there. The passage selected is barely defensibe.

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              • …Which is to say I didn’t mean to jump to a comment about the author overall, and that’s the explanation I was looking for. Expecting “empathy” for each and every argument seems overkill to me – let’s get to the point not get caught up in courtly rituals of mutual esteem demonsration – but I agree I’d rather we refrained from dismissing authors entirely over individual arguments.

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              • Michael Drew: I didn’t realize that the point here is only to discuss the entirety of each piece linked rather than the passage.

                The point, in my view, is whatever point anyone wants it to be, and whatever point against that as well.

                What I found dismaying was the leaping on a hobbyhorse of complaining about someone else leaping on a hobbyhorse, and then congratulating oneself for the exploit. I was also pointing out that the exhibition was leading me to jump on my own hobbyhorse of complaining about people jumping on their hobbyhorses to complain about other people jumping on their hobbyhorses.

                Your contribution had a slightly different character, but frankly I didn’t find it very illuminating or self-conscious either. If Dreher’s use of the word “partisan” is slightly ill-chosen or confusing, there’s good reason for that, and anyway it seems a small point. Dreher is obviously very well aware that Kennedy was a Reagan appointee, since he mentions it. The “partisan” conflict in which Dreher is most interested is the one between on the one side partisans of social liberalism and judicial activism and on the other side partisans of social conservatism and judicial restraint – not between nominal Rs and nominal Ds, it seems to me.

                (Minor sidebar: “Railing” in my view refers to a vehement denunciation, a rant, a screed, not a singled pointed mention. The etymology’s a bit confusing, but for me the “rail” has always carried with it, in English, a punning connotation of “extension.” YMMV, but in an event I don’t think it applies to the piece as a whole at all, and I think it applies only dubiously to the particular excerpt.)

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                • To jump back in, my initial comment related to D’s ” this polarization is so so bad, it is a shame the other team caused it and it took an in-your-face conservative to point out how bad it is stuff. Is that supposed to be wise or just sort of clueless?

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                • partisans of social conservatism and judicial restraint

                  See, here’s your problem right here, mister.

                  These people are wholly imaginary. They don’t exist, anywhere.

                  Who in the world, has actually advocated “judicial restraint” except when applied to ruling they don’t like?

                  Certainly not Scalia, or any other prominent social conservatives.

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                    • Scalia never pretended to be in favor of restraint in undoing what he viewed to be excessive activism.

                      But he didn’t just do things that could be reasonably construed as that. Shelby County v. Holder, where he joined the majority, for example, was straight up rejecting a law passed by Congress, based on policy objections, despite the powers granted by the explicit text of the Fifteenth Amendment.

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                      • I’m not going to try to argue Shelby County v Holder with you, or to try to demonstrate perfect consistency in all of Scalia’s opinions over the course of his life. I’m also aware that many on the broad left viewed his joining the majority on that case as contradicting what they took to be his position or philosophy. Still, striking down a law or an interpretation of the law would not be the same as “legislating from the bench” – or creating new positive law by judicial fiat. Obviously, the phrase “judicial activism” lacks nuance, since the only perfectly self-consistent position against “judicial activism” understood broadly would be against judicial activity of any kind. He was also not against Supreme Court review, or an “active” defense of the Constitution and constitutional government as he understood it – so long as the particular case deserved to be heard on its own terms.

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                        • I’m also aware that many on the broad left viewed his joining the majority on that case as contradicting what they took to be his position or philosophy.

                          Well, yeah. If we can’t rely on Scalia (and by extension Dreher) to honor this alleged principle of “judicial restraint” when it’s our cherished policies in the crosshairs, why shouldn’t we dismiss it as cant?

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                            • You could tell it was non-partisan and a textbook case of the judiciary working as a neutral arbiter by the way it expressly said “This isn’t to be used as precedent”.

                              Which was sad, because I was kind of looking forward to SCOTUS continually correcting state courts on matters of state law, because that seemed totally legit.

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                          • It’s up to you how responsible you want to be in the process of arriving at such a dismissal.

                            If you are honestly interested in knowing Scalia’s own explanation, or the explanations offered by others on his behalf, you can seek to analyze them on their own terms. Even if you did reach the conclusion that Scalia had no consistent basis, given his philosophy properly understood, for reaching the decision he did (I don’t find his reasoning very complicated, but, as I said, I’m not going to try to argue the case here), that would still leave open the question of why his deviation or inconsistency of such importance to you should be of importance to anyone else in assessing the entirety of his work or his life. If the philosopher failed his philosophy, that wouldn’t necessarily make the philosophy a bad one. Indeed, if being perfectly consistent in his philosophy would necessarily have led to an outcome you would prefer, why isn’t that an argument for it, from your perspective? In more ways that one, in fact: Apparently the argument for judicial restraint failed due to the arbitrariness of this particular judge in applying it – all the more reason to seek greater restraint on arbiters, since they are so given to being arbitrary.

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  4. The social conservative handwringing is typical Dreher, but the real irritation here are the profoundly silly process arguments. “Oh, no! How the replacement of Antonin Scalia will inflame partisan acrimony. It will remind us of the last time the Senate actually debated a SCOTUS nominee on the substance of the beliefs that will most influence their rulings!”

    One of the things I actually realized before Scalia died was how daft it is to maintain the pretense that Court nominees aren’t going to have a pretty good idea what rulings they agree with and what they don’t. I’m (to put it mildly) a Bernie skeptic, and realized that I was deploying that argument against him after what he said about appointing justices to overturn Citizens United… and it’s just foolish. I’d much rather have an actual debate over the issues at stake in appointments than another round of tedious shadowboxing over questions of how the Senate is obligated to address its duty to offer “advice and consent” on nominees.

    If being honest about what’s at stake in judicial appointments, or for that matter elections, makes them more acrimonious, so be it.

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  5. well, if we’re supposed to comment substantively, then this bit: “This is the poisoned fruit of what Ted Kennedy and his Senate Democratic colleagues did to Robert Bork.” is the usual meretricious cant that comes from unsophisticated partisans.

    Robert Bork committed the Saturday Night Massacre. On that basis alone he never should have even been nominated. He nevertheless got a full vote in the Senate and lost, with 6 Republican senators voting Nay.

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