The Briefing 01-31-17

Part I

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SCOTUS and the future of America: Trump to announce Supreme Court nominee tonight

At 8 o’clock tonight, Eastern Time, President Donald J. Trump is expected to announce his nomination to the United States Supreme Court. This goes back to 2016 and the unexpected death of Justice Antonin Scalia. Shortly after Scalia’s death, then-President Barack Obama announced the nomination of Judge Merrick Garland to fill the seat. Garland is a judge on the D.C. Circuit of the U.S. Court of Appeals. In response to President Obama’s nomination of Merrick Garland, Senate Republican leadership refused to move forward with the nomination even in terms of hearings, citing the fact that President Obama had made the nomination in the midst of a very contentious presidential election.

Of course all of this was controversial at the time, and it remains controversial precisely because of what is at stake. When we look at the great cultural worldview and moral divide that now separates Americans, we also understand that it is a constitutional divide, that is over the interpretation of the Constitution. Thus, it is a hermeneutical divide, a divide over how a text should be interpreted, specifically the text of the U.S. Constitution. Behind all of that are two rival visions of how America should understand our relationship to the Constitution and to law. The two great trajectories here in terms of legal theory are between the progressivist dream that liberals have favored now for a matter of decades and a more traditional or conservative approach, which defines the role of the judge as interpreting the actual text of the Constitution and statutory law and if there is any question beyond that, looking to the intention of those who originally framed the text.

If that sounds like a rather arcane or abstract argument, just consider the fact that it all comes down to how judges actually decide cases, how they interpret statutory law and the Constitution. That more liberal approach says that what the judge must do is to consider the text, whether it’s the Constitution or a statute, to be a document with an evolving meaning that is not bound by either the words and the grammar of the text or by the intentions of those who adopted it in the first place. The more conservative understanding, sometimes called strict constructionism or textualism or originalism, argues that it is the text that is determinative and the original intent that is most important.

As I have often pointed out, there are incredible parallels between the arguments between liberal and conservative constitutional theorists and between liberal and conservative interpreters of Scripture. In both cases, the question comes down to which has authority, the interpreter or the text? One of the reasons why there is so much attention to this particular seat on the United States Supreme Court is because the late Justice Scalia was actually one of the most influential theorists arguing for a strict constructionist, a more conservative originalist understanding of the Constitution and the role of the judge. His preferred term was textualist. The text is what holds the authority.

As of this morning there is plenty of speculation about the identity of the nominee, but we will all know at least at 8 o’clock tonight. In anticipation of President Trump’s announcement, there is not only speculation about the identity of the nominee, but political sides are already lining up for what’s going to be by any measure a very great debate.

A really interesting essay came just before the end of last week by Charles Lane published in the Washington Post. Writing from the left, he makes very clear why Senate Democrats have so much investment in this particular controversy and beyond them why the left itself is so disappointed in the fact that President Obama’s not making this nomination, but rather President Trump, or in terms of the election how disappointed they are that it’s not a President Clinton making this announcement, but rather President Trump. Lane writes,

“A 5-4 — or 6-3 — liberal-majority Supreme Court could have reigned over federal courts that have already tilted left after eight years of Obama appointments. A second Warren court was at hand: Foreseeable results included abolition of the death penalty, solidified transgender rights, strengthened gun control, increased power for federal environmental regulators and, in response to Black Lives Matter, stricter constitutional scrutiny of the police.”

Lane is basically trying to explain why the left is so absolutely disappointed and why there is going to be such heated opposition to any appointment that might be made by President Donald Trump. The fact is the left understands that in losing the presidential election, they may well have lost their greatest opportunity to reshape the Supreme Court for at least a generation. And what’s also clear in the article is not only the grief over a missed opportunity in the view of the left, but the fact that they really didn’t believe this could happen. They were really already factoring in a presidential election win and what that might mean for the Supreme Court. Now that comes in to even clearer view when we understand that the likely retirements coming from the Court in coming years will come from predominantly liberal justices appointed by Democratic presidents—more on that in just a moment.

But Charles Lane is actually onto something of great importance when he writes to the left about the left that they simply should acknowledge their shared grief about this missed opportunity, and he was very clear about the contours of what they believe they have missed, an opportunity for what he said was a “second Warren Court.” That refers to the Court under the late Chief Justice Earl Warren and that was a court that even though was largely appointed by Republicans, that turned out to be a very liberal court. And it was the very court that adopted as a means of constitutional interpretations this more liberal interpretation of the Constitution and statutory law. The Warren Court gave way to successive courts that continued in that same tradition, and even though Republicans were naming justices to the Supreme Court, the actual trajectory of the Court itself didn’t change until the arrival due to the nomination by President Ronald Reagan of Justice Antonin Scalia. Thus we understand why both sides in this political controversy and both sides in our great worldview divide should understand that this really does matter.

In his essay Lane goes on to write,

“So when Senate Minority Leader Charles E. Schumer (D-N.Y.) threatens to fight ‘tooth and nail’ against an ‘out of the mainstream’ Trump pick, perhaps keeping the court split between four Democratic and four Republican appointees, he is expressing both his party faithful’s fear of what a Trump pick would do, and their grief over what might have been.”

But then Lane turns to make another very interesting and accurate observation. And that is this: the real issue concerning the future of the Court now is not so much this vacancy to the seat vacated with the death of Justice Antonin Scalia, but whatever might be a second seat that would open. That’s because if indeed President Trump does nominate a conservative jurist to sit on the U.S. Supreme Court taking Scalia’s seat, that would, as Lane reflects, actually return the Court to where it stood earlier in 2016 before Scalia’s death. The real fight will come if there is a second opening during Donald Trump’s term and if that opening comes with the death or retirement of a justice appointed by a Democratic president. And we’re looking at the fact that Justice Ruth Bader Ginsburg is 83 and Justice Stephen G. Breyer is 78.

But here’s where we have to understand that the stakes are even higher than some might understand even with those justices factored in. That’s because if Hillary Clinton had been elected president, and if she were appointing liberal justices to the U.S. Supreme Court as she pledged, not only would she have had the opportunity to shift the dynamic on the Court by appointing a judge to the vacancy of Justice Antonin Scalia, but if a conservative or Republican nominated justice had retired during her first term, she would have had that second opportunity to shift the court to the left.

So when President Trump makes his announcement tonight of his nomination to the U.S. Supreme Court, the “who” question will be answered. But even before that nomination is announced, we understand the answer to the “what” question, the question of what’s really at stake. Once the nomination is made tonight and the controversy ensues and the confirmation process moves forward, there will be ample, even abundant opportunity to understand the importance of worldview and why it matters, why it matters especially in a position so important as this.

Part II

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Reflecting on the 2017 March for Life, there is much to be thankful for and more work to be done

Next, last Friday in Washington D.C. the March for Life took place along with a conference known as Evangelicals for Life, both very hopeful in terms of opportunities for advance in the protection of the dignity and sanctity of life in coming years. That was reflected in major media headlines, including the fact that the article in the Associated Press by Ben Nuckols read,

“The politically ascendant anti-abortion movement gathered Friday for a triumphant rally on the National Mall, rejoicing at the end of an eight-year presidency that participants said was dismissive of their views.”

Nuckols goes on to write,

“Vice President Mike Pence told the crowd at the March for Life that anti-abortion policies were a top priority of the new administration, and President Donald Trump tweeted that the rally had his ‘full support.’”

Writing a front-page article for the Washington Post, reporters Julie Zauzmer and Sarah Pulliam Bailey looking in advance to the event on last Friday said,

“After 43 years of doggedly demonstrating against abortion at the annual March for Life each January, thousands of abortion opponents will gather Friday on the Mall with great reason for optimism. Just days into his presidency, Donald Trump has made abortion one of his first priorities in office.”

The background of this is really important, and it points back to our previous discussion on the U.S. Supreme Court. And that’s because the issue of abortion was put front and center on the national agenda, and we should argue on the national conscience, because of the 1973 Roe v. Wade decision. That along with the other pro-abortion decision handed down by the Court known as Doe set the stage for the legalization of abortion in all 50 states. And that set the stage for almost 60,000,000 deaths in American wombs since that decision was handed down in 1973. The very first January after the Supreme Court handed down that decision pro-life demonstrators gathered in Washington D.C. in a spirit of both grief and hope. The march has been held in Washington D.C. every January on a date as close as possible to that anniversary of the Roe v. Wade decision, that is January 22.

But over the years the March on Life has been somewhat transformed, of course it’s been transformed generationally—the leadership of 1974 is not the same leadership as in 2017. But when I had the honor of speaking to the conference Evangelicals for Life in Washington on Friday just before the March for Life, I made the point that we can also document another major change in the pro-life movement, and it’s both important and very encouraging. If you can look back at that crowd at the 1974 March for Life, you might’ve seen a smattering of Protestants and evangelicals. But the overwhelming energy in the pro-life movement at the time came from Roman Catholics. Contrast that with 2017, where there were a large number of evangelicals present and especially younger evangelicals. That’s one of the most hopeful signs as we think about the awakening of the evangelical conscience and the development of the understanding of the Christian worldview and its demands for and undergirding of the sanctity and dignity of every single human life.

In that address, I sought to make very clear that being pro-life is much more than being anti-abortion. But without any apology, it certainly does begin with being anti-abortion. That’s because even though being fully pro-life affirms that every dimension of life as God intended it is for human flourishing and thus any diminishing of humans flourishing is an assault upon God’s glory and creation. Human flourishing cannot exist where human life is extinguished. A society that will allow abortion is a society that will subvert human dignity and human flourishing eventually at every turn.

There were other very significant historical developments at the 2017 March for Life. One of them very centrally was the presence of the incumbent Vice President of the United States, Michael Pence. The big issue there is this even though previous Republican administrations have been decidedly pro-life and even as they had given encouragement to the March for Life, no sitting President or Vice President had ever addressed the March for Life in person. All that changed on Friday with the personal appearance of the Vice President of the United States, making a very clear pro-life argument. There is no question that the 2017 March for Life made history. We must hope and pray that it will also make a difference.

Part III

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From chimeras to chaos: Scientists create embryo that is part-human, part-pig

Next, when come to assaults upon human dignity and the sanctity of human life, a story of great importance was missed by many if not most last week. The headline of the article in the New York Times on Friday was this,

“New Prospects for Growing Human Replacement Organs in Animals.”

Well, that doesn’t appear so absolutely alarming, but consider some of the other headlines about the very same news story. The headline in the front page article in the Washington Post by Sarah Kaplan was this,

“Part-human, part-pig embryo is grown in lab”

Now just consider the fact that those two headlines and the placement of those two stories in two of the most influential newspapers in our country point to the fact that the headlines can lead or they can mislead. Frankly, it’s not always even a matter of the intentionality of the editor but is often reflective of the worldview. That New York Times headline seemed to suggest that this was merely a hopeful development in science. The Washington Post’s headline seemed to reflect upon the fact that there just might be a problem here in the creation of an embryo that is part-pig and part-human. In her Washington Post article, Kaplan writes,

“For the first time, scientists have grown an embryo that is part-pig, part-human. The experiment, described Thursday in the journal Cell, involves injecting human stem cells into the embryo of a pig, then implanting the embryo in the uterus of a sow and allowing it to grow. After four weeks, the stem cells had developed into the precursors of various tissue types, including heart, liver and neurons, and a small fraction of the developing pig was made up of human cells.”

She continued,

“It is a major breakthrough for a technique that scientists hope may one day be used to grow human tissue in farm animals, making organs available for people in need of transplants. But to many,” she writes, “the creation of beings that are part-human, part-animal cross a symbolic or sacred line and raise serious ethical concerns.”

Well, serious ethical concerns indeed. Even the ancients were concerned about what the Greeks called a chimera. That is a monster that is part human and part animal. But what was once merely ancient fear or modern science fiction is now turned into a hypermodern reality. The reality was announced by scientists and reflected in these headline news stories. Malcolm Ritter, writing the report for the Associated Press wrote,

“Such human-animal research has raised ethical concerns. The U.S. government suspended taxpayer funding of experiments in 2015. The new work, done in California and Spain, was paid for by private foundations.”

Indeed it was private foundation money behind the research that was conducted in California and in Spain. And in the peer-reviewed academic article that reports on the research and the creation of this early embryo, it’s very clear that scientists using the genetic CRSPR technology believe they’re on the threshold of going far beyond what is reported in this particular experiment. And we also need to know that this experiment was of relatively short duration. The embryo was not allowed to develop for long, and we are assured as we hear from these scientists that they did not allow it to go further so that they might minimize the ethical complications.

But that’s a very small comfort for two very important reasons. First of all, there is no reason to believe that the scientist will not move forward with further development of these embryos. And secondly, the article actually makes very clear that that is the hope, the hope is that one day this technology may be used in order to grow tissues—that is human tissues and even human organs—within farm animals for transplantation and surgical use. Two scientists, one American one Japanese, are behind the experiment, and they reported together. As the New York Times account reports,

“Both scientists expressed confidence that ethical concerns about chimera research could be addressed. Chimeras are typically mosaics in which each organ is a mixture of the host and donor cells. But new techniques like the Crispr-Cas gene editing system should allow the human cells in a pig embryo both to be channeled into organs of interest and to be excluded from tissues of concern like the brain and reproductive tissues.”

Now there’s a whole lot loaded in just those last few words. So much so that one of the researchers had to say to the Times,

“We’re not creating monsters.”

Why in the world would it come down to that? Well it’s because of this: those last words we heard in the previous paragraph said that the hope is that this new technology can be used in order to keep human cells from “the brain and reproductive tissues” of the other animal. That’s the real danger we’re looking at here. That’s the real fear that in terms of ethical importance looms so massively over this entire experiment. The New York Times article acknowledges that there could be what he calls an untoward outcome. Nicholas Wade writes,

“Another untoward outcome would be if human cells should come to compose the pig’s reproductive tissues. Few people want to see what might result from the union between a pig with human sperm and a sow with human eggs.”

The ethical complications here are massive, and we also need to understand that blurring the line between human beings and other creatures is inescapably dangerous. Human dignity is going to be confused, and once confused almost assuredly it will be subverted as well. There can be no question that we have a shortage of human tissues and organs for transplantation. That’s a very important issue. But what we notice here is the fact that that kind of medical good, the development and availability of tissues and organs, seems to be so overwhelming that barriers that previously had been unthinkable then become thinkable, and once they’re thinkable, they then become the subjects of experiments. And those subjects of experiments all too quickly become the subjects of a new experiment. One boundary is crossed and another boundary is crossed very shortly thereafter, the scientific community has a habit of saying we will stop here and draw this boundary line. But the next thing you know, the boundary itself is being moved, and in this case human dignity is what’s on the line.

Part IV

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Terror strikes Quebec City: Six dead in anti-immigrant hate crime at Canadian Mosque

Finally, today a very horrible headline out of Quebec City in Canada. It appears that a man entered an Islamic mosque and opened fire, killing six and wounding at least 17. We are told that five of those are currently in critical condition. Canada’s Prime Minister Justin Trudeau declared the attack on the mosque to be an act of terror, and the man who is being held by authorities as the suspected shooter is someone who had been previously known to authorities as expressing anti-immigrant sentiment.

There is no question that the Canadian Prime Minister is absolutely right in referring to this as an act of terror—and that is something that should not be said lightly—but what makes an act a terrorist act is not just the scale of the carnage. It is also the message that is intended to be sent. We’ll need to know far more about what is taking place there in Quebec City, but the news tells us already that this appears to be the intentional targeting of an Islamic mosque by someone who did indeed want to send a very clear signal, probably anti-Islamic, certainly anti-immigrant.

Those kinds of messages are sometimes discussed as hate speech and these crimes as hate crimes. We need to understand there is a danger in terms of trying to determine in every case if we can enter into the mind of someone who would carry out such a horrible crime, but we also need to take at face value the fact that sometimes those criminals, those who are murderers and carry out these horrible crimes, don’t have to be so much interpreted. They sometimes tell us by means of what they say or what they have written, exactly why they have carried out these horrible attacks. In that light, we have to take them seriously, whether it be Dylan Roof in Charleston, South Carolina, who declared that his shootings there in that city were because he wanted to create a race war, or what appears to be the unfolding story there in Québec city, where the message to be sent might well be a message that is, in general terms, anti-immigrant and in particular anti-Islamic. No matter where terror takes place or who is the target we need to name it for what it is.