David Brooks: Roe's Birth, and Death

By DAVID BROOKS
The New York Times
Published: April 21, 2005

Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.

When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that's always existed on this issue. These legislative compromises wouldn't have pleased everyone, but would have been regarded as legitimate.

Instead, Blackmun and his concurring colleagues invented a right to abortion, and imposed a solution more extreme than the policies of just about any other comparable nation.
Religious conservatives became alienated from their own government, feeling that their democratic rights had been usurped by robed elitists. Liberals lost touch with working-class Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views. The parties polarized as they each became dominated by absolutist activists.

Unable to lobby for their pro-life or pro-choice views in normal ways, abortion activists focused their attention on judicial nominations. Dozens of groups on the right and left have been created to destroy nominees who might oppose their side of the fight. But abortion is never the explicit subject of these confirmation battles. Instead, the groups try to find some other pretext to destroy their foes.

Each nomination battle is more vicious than the last as the methodologies of personal destruction are perfected. You get a tit-for-tat escalation as each side points to the other's outrages to justify its own methods.

At first the Senate Judiciary Committee was chiefly infected by this way of doing business, but now the entire body - in fact, the entire capital - has caught the abortion fight fever.

Every few years another civilizing custom is breached. Over the past four years Democrats have resorted to the filibuster again and again to prevent votes on judicial nominees they oppose. Up until now, minorities have generally not used the filibuster to defeat nominees that have majority support. They have allowed nominees to have an up or down vote. But this tradition has been washed away.

In response, Republicans now threaten to change the Senate rules and end the filibuster on judicial nominees. That they have a right to do this is certain. That doing this would destroy the culture of the Senate and damage the cause of limited government is also certain.

The Senate operates by precedent, trust and unanimous consent. Changing the rules by raw majority power would rip the fabric of Senate life. Once the filibuster was barred from judicial nomination fights, it would be barred entirely. Every time the majority felt passionately about an issue, it would rewrite the rules to make its legislation easier to pass. Before long, the Senate would be just like the House. The culture of deliberation would be voided. Minority rights would be unprotected.

Those who believe in smaller government would suffer most. Minority rights have been used frequently to stop expansions of federal power, but if those minority rights were weakened, the federal role would grow and grow - especially when Democrats regained the majority.

Majority parties have often contemplated changing the filibuster rules, but they have always turned back because the costs are so high. But, fired by passions over abortion, Republican leaders have subordinated every other consideration to the need to overturn Roe v. Wade. The Democrats, meanwhile, threaten to shut down the Senate.

I know of many senators who love their institution, and long for a compromise that will forestall this nuclear exchange. But they feel trapped. If they turn back now, their abortion activists will destroy them.

The fact is, the entire country is trapped. Harry Blackmun and his colleagues suppressed that democratic abortion debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you can't stop the escalation of conflict in the middle. You have to kill it at the root. Unless Roe v. Wade is overturned, politics will never get better.

E-mail: dabrooks@nytimes.com