The Briefing 03-20-17

Part I

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An "ideological food fight"? Confirmation hearings for Supreme Court nominee Neil Gorsuch begin today

This is going to be a huge week of significance in Washington, D.C. It’s going to be a huge week for consideration from the Christian worldview, and that’s because this is going to be the week of the confirmation hearings for Judge Neil Gorsuch to be the next sitting justice of the United States Supreme Court. Ground Zero of this particular analysis will take us to Washington, D.C. to the Capitol and indeed to the chambers of the Senate Committee on the Judiciary. That is where these hearings will be held. And as these hearings unfold, we’re going to see a massive contrast of worldviews. We’re going to see the deep cleavage in this country that is ideological as well as political, that is moral as well as legal; we’re going to see all this on display, and it’s going to be so televised for most of this week.

The reason why there’s so much attention to this is that so much is staked upon the judiciary, the federal judiciary, in particular the United States Supreme Court. There’s a reason for that. The court was rarely either famous or infamous until the second half of the 20th century. There were isolated cases of great controversy in American history preceding that, but it was in the second half of the 20^th century that everything changed. This period in the nation’s history is marked by what has been called the judicial usurpation of politics. This refers to the fact that the federal courts in general and Supreme Court particularly have taken upon themselves authority to decide so many of the most controversial and contentious issues in American political life, including some of the most debated moral issues of American society.

On the one hand, this points to the fact that Congress has often proved itself unwilling or unable to decide on these issues. But surpassing even that, what we see is that those who have been pushing for a liberal trajectory in terms of change in American culture have known that they had been unable to affect that change by means of the state legislatures or the United States Congress, so instead they took refuge in the courts and the courts took on an activist posture that did indeed drive this country in a very liberal direction, that direction made very clear by Supreme Court cases, including perhaps most infamously 1973’s Roe v. Wade decision legalizing abortion in all 50 states and the 2015 Obergefell decision legalizing same-sex marriage in all 50 states. Neither of those would’ve been possible through the legislature. Both of them were driven by the judiciary. That has meant that the Supreme Court is now absolutely at the center of the public mind and almost every single public controversy. Thus, any opening on the Court becomes deeply political. We’re looking at the fact that the confirmation hearings are going to be what Judge Gorsuch himself, describing a previous set of confirmation hearings, described as an “ideological food fight.”

We need to note that this is a fairly recent and lamentable development in American history, but it’s a development that was inevitable if the Court is going to be the branch of our government that decides so many of these issues. So much is at stake. We’re talking about nine positions; we’re talking about positions that continue throughout the lifetime. They are appointments for life and for that reason what we’re going to see in Washington, D.C. this week matters just as much as the media will claim that it matters, and both sides in terms of the nation’s political divide really do understand this.

When I say this is a fairly recent development, I mean just in the last several decades. And what has changed is that in previous times in American history, nominees to the Supreme Court sent by presidents to the Senate were often dealt with very quickly and, if there were hearings at all, those hearings had mostly to do with the moral integrity and professional qualifications of someone nominated to sit on the Supreme Court. For example, as Adam Liptak of the New York Times tells us,

“On April 3, 1962, President John F. Kennedy nominated Byron R. White to the Supreme Court. The Senate confirmed him by a voice vote less than two weeks later. After a perfunctory 90-minute hearing during which the nominee smoked cigarettes and doodled while senators praised his legal skills.”

Liptak gets it just right when he tells us,

“On Monday, one of White’s former law clerks, Judge Neil M. Gorsuch, will appear at his own Supreme Court confirmation hearing. It will last for days and reflect the brutal politics of a polarized era.”

The great change between then and now came in 1987 when President Ronald Reagan nominated former Solicitor General of the United States, Robert Bork, to an open seat on the U.S. Supreme Court. This led to an absolute change in the way these confirmation hearings would take place. A part of the reason had to do with the media coverage that was then available, especially through cable news networks. That was unprecedented; those hearings had not been televised before. But it gave Senators a grandstanding opportunity, and especially Democratic senators very opposed to the nomination of Robert Bork, understanding what a new conservative justice on the Court would mean, they did indeed grandstand. And in the end, Robert Bork’s nomination failed, eventually President Reagan would nominate Anthony Kennedy, currently sitting on the Court as the justice who would be confirmed, and he was confirmed quickly in the aftermath of the Bork controversy. But after the Bork hearings everything has changed. Now almost every single nomination to the Supreme Court becomes a battle royal, and it’s fought out in public. And just as Judge Gorsuch said concerning some previous nomination hearings, it is indeed an “ideological food fight.”

The table was set for this particular ideological food fight by the death last year of Justice Antonin Scalia. Scalia was the conservative lion of the court. He had an outsized influence and will be remembered in American history as the most effective proponent of what is known as originalism, that’s the idea that a text, in this case the Constitution of the United States and subsequently U.S. statutory law, should be interpreted in terms of the intention of those who wrote the law, those who framed the Constitution and. furthermore, originalism lends itself to textualism. That is the understanding that it is the actual text, the sentences, the propositions of a text such as the Constitution, that should prevail.

Now the alternative to this is what’s known as a very progressivist understanding of the Constitution. It’s the understanding of a living Constitution, as those proponents claim. The idea that a text cannot be dated simply in the past but must be allowed to have elasticity to be applied in the present, of course, that application is then done by judges who impose their own worldview on matters that were clearly not addressed in the U.S. Constitution nor even envisioned, or it’s often by extension also the case that it was to a purpose for which a federal statute was also never intended to address.

Classic examples of this divide come down to issues such as abortion, where in 1973 a majority of the US Supreme Court ruled that there was a woman’s right to privacy found in the Constitution, whereas there is no such right articulated in the Constitution at all. They then applied that to abortion. Justice Scalia would hold to the understanding that it is clear that neither the text nor the intention of the framers of the U.S. Constitution had anything to do with the so-called right to privacy, much less with a woman’s supposed right to destroy the unborn baby in her womb. Justice Scalia and other originalists and textualists would simply say Congress could adopt such a law. But Congress, of course, did not. Judges have no right to say that U.S. Constitution would mandate the legalization of abortion, something that was clearly neither included nor intended by those who framed the U.S. Constitution. When Justice Scalia was in the minority of the Court he would often issue a dissent. The adjective most commonly used for his dissent was “scathing” because he minced no words in demonstrating what he felt was going on: Liberal judges and justices simply inventing new laws as if they had the authority to do so, basing their arguments on what was claimed to be a living Constitution when there was no textual basis whatsoever for their arguments.

Christians overhearing that conversation among lawyers and judges need to recognize that it is almost exactly the kind of conversation that takes place in terms of how one should interpret the Scripture. Now it’s not the same kind of text, we’re talking about the difference between a human text and a divinely inspired text. But the two basic trajectories of interpretation are still found. Conservative biblical scholars argue for the text, that is a grammatical-historical interpretation of the text, and for an understanding of the text in terms of its unfolding story, that’s a redemptive-historical hermeneutic—both of those very conservative efforts to try to make clear what the text means and to make clear that whatever the text means is exactly what the text says. Liberals in terms of biblical scholarship deny the divine authorship and then liberate themselves to reinterpret the text as they see fit or to disregard the text as they see it superseded by other texts or, for that matter, superseded by a later human wisdom.

Over the course of the next several days we are going to see these two great opposing ways of understanding the U.S. Constitution made abundantly clear. It’s going to be largely partisan. It was not always that way, but it’s become that way in a politically and ideologically polarized America.

Also in the background to this particular week’s controversies will be the fact that President Barack Obama had made a nomination to this very seat once it was vacated by the tragic death of Justice Scalia. President Obama had nominated Judge Merrick Garland to this seat, but he never actually received even confirmation hearings before the United States Senate. With Republicans in the majority arguing that this was no time for a President to make such a nomination, as the American people were getting ready to go to the polls to vote for a President of the United States who should have the right to make this nomination. This nomination has now been made and that sets the stage for what’s going to be happening in Washington this week with the confirmation hearings of Judge Gorsuch. But this leads the New York Times to a headline story yesterday,

“Gorsuch Confirmation Presents Democrats With 2 Difficult Paths.”

Carl Hulse reports by saying,

“When it comes to the Supreme Court nomination of Judge Neil M. Gorsuch, Senate Democrats appear to have two options: Get out of the way or get run over.”

Now why would he say that? It is because in making this particular nomination, President Trump demonstrated a particular tactical brilliance in terms of nominating to the Court a justice who would be undeniably conservative, who has impeccable strict constructionist, originalist, textualist credentials, and who at the same time appears to be a very human, very humane character with impeccable credentials. As one Democratic senator was heard to say in the hallways, it’s as if Justice Scalia is back with the personality of Jimmy Stewart. But Carl Hulse means something else when he says that the two options are “get out of the way or get run over,” and that’s because there is a clear Republican majority in the Senate, but the math here becomes very crucial.

Sixty votes is what is necessary for what’s called cloture. Cloture is the Senate’s vote before a vote. In order for any kind of measure, including a presidential nomination, to get to the floor of the Senate, it must receive 60 votes. Now there are 52 Republican senators, that means that eight Democratic senators would also have to vote for cloture even if later they would vote against Judge Gorsuch in terms of his nomination. That’s not entirely unprecedented, that’s actually happened in the past. There have been those who have voted for cloture even though they would eventually vote against a nominee. The logic of that’s very straightforward. The logic is that it is right to give the nominee a vote on the full floor the Senate, even if that will be a failing vote.

But there’s something else that has to be recognized here. We’re looking at the fact that the cloture vote does require 60 votes, but it was in the last Senate under the leadership of a Democratic majority—the Democratic majority leader was then former Nevada Senator Harry Reid—who took what was called the nuclear option. And when it came to federal nominations made by a President of the United States, it was the Democratic majority who removed the necessity of that 60 votes for cloture and instead made it nearly a majority vote. Now we also need to note the Senate Democrats at that time, while invoking the so-called nuclear option, did not extend it to Supreme Court nominations. But there’s no reason that Senate Republicans with the Democrats already having prevailed in terms of the nuclear option could not use that very option in terms of nominations to the U.S. Supreme Court. Now that would be historic because that would then mean that the other party, when it finds itself in the majority with a Democrat in the White House, could also apply the same simple majority rule to a nomination to the U.S. Supreme Court. But the fact is as President Trump has instructed the Senate, there is now no question that that nuclear option must be invoked, otherwise there will never be a successful nomination to the U.S. Supreme Court. At this point, it is very unlikely that there will ever be 60 votes on a contentious question such as the nomination of anyone to the U.S. Supreme Court.

Finally on this issue, we will be watching the day’s arguments unfold day by day and there will be plenty for us to consider. But even before we get there, we need to ask the question, what would be the strategy to try to defeat the nomination of Judge Neil Gorsuch? It can’t be on anything discovered about his moral character. It can’t be on anything concerning his academic background. He’s a graduate of Columbia University and Harvard Law School, again, he has that Doctor of Philosophy degree from Oxford University. It can’t be because of his record on the court in terms of distinguished opinions. There has been nothing tremendously controversial about any of the decisions handed down by Judge Gorsuch heretofore, and that’s often the case, by the way, for someone who serves in a district court or appellate court level.

Matt Flegenheimer for the New York Times tells us the Democrats approach will be to present Judge Gorsuch as the enemy of the little guy and the friend of the big guy. As Flegenheimer says,

“Democrats have zeroed in on their most prominent planned line of attack: Judge Gorsuch’s rulings have favored the powerful and well connected. And he has done little, they will say, to demonstrate independence from a president whose combative relationship with the judiciary has already clouded the nominating process.”

Well, now just to take that apart for a moment because it’s important, even before the hearings begin, in the first place, the supposed standard of independence is frankly almost insane. We’re looking at a claim that somehow a sitting federal court judge in Denver, Colorado should have by now demonstrated an independence to a President of the United States who’s been in office only for a matter of weeks. The opponents of Judge Gorsuch are going to be using the word independence, but it’s not going to have any clear reference. It’s going to be code language for their opposition. But there’s something else here as Flegenheimer tells us, it’s going to be the effort to present Judge Gorsuch as the friend of big interests rather than the lone individual, the American citizen. That’s also going to be very difficult to pull off, but it’s interesting to note that the arguments are already underway.

That article in the New York Times by Flegenheimer ran on March 14. And then almost as if on cue, prominent Democrats such as the Democratic leader in the Senate, New York Senator Chuck Schumer, came out with almost the very same argument. This is the way this kind of politics is played in Washington, D.C. Party leaders come up with an argument and those who are in the party down the line are expected to repeat the argument over and over again every time a camera or microphone is thrust before them. Just two days after the New York Times article on the Democratic strategy ran, Senator Schumer said,

“Far too often he,” meaning Gorsuch, “sides with the powerful few over everyday Americans just trying to get a fair shake.”

There’s no documentation of that, but that’s the line and they’re sticking with it. He then said,

“Now Judge Gorsuch may act like a studied neutral judge, but his records suggest he actually has a right-wing, pro-corporate special interests agenda.”

Again, there’s code language going on there. It needs to be watched very carefully and understood for exactly what it is. When you don’t have an argument you use this kind of code language hoping that it will at least get some media attention when you have very little argument to make.

It’s going to be a worldview workout this week in terms of these confirmation hearings. What we discussed today is just how the stage is set. How the drama unfolds, well, we’ll find out how that story develops over the next several days.

Part II

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When feminism and abortion collide, feminism loses: British doctor pushes for sex-selective abortion

Next, we shift the scene to Great Britain where The Telegraph, a major London newspaper, reports that an influential British obstetrician and gynecologist, a member of the British Medical Association, has come out and argued for the moral acceptability of sex-selection abortions, that is the moral acceptability and what she argues should be the legal right for a woman to destroy the unborn baby in her womb simply because that baby is not of the biological sex that is desired. As The Telegraph reporters report,

“Forcing pregnant women who do not want a child of one sex or the other to give birth could harm both the baby and the mother’s mental health.”

That according to a leading doctors’ union member. That member is Professor Wendy Savage, a voting member of the British Medical Association Council. She said that,

“Women should have the right to terminate a pregnancy at any stage.”

Now just consider those words, “at any stage,” means right up until the moment of live birth. As the reporter said, the comments by Professor Savage, a women’s rights campaigner and a retired obstetrician and gynecologist, came after a proposal that came before the British Parliament to decriminalize abortions. That particular proposal passed the first hurdle in the House of Commons just last week. But as the reporters say,

“Her intervention is likely to spark a strong reaction from campaigners on both sides of the argument.”

Professor Savage said,

“Sex-selective abortions were a ‘myth.’”

The word ‘myth’ is put in quotation marks. She denied basically that they happen, but then she openly admitted that they do, arguing that they should be considered legal and that it would be wrong to oppose even sex selection abortions.

The Telegraph reporter said that the doctor “hit out at [National Health Service] hospitals”—that’s the hospitals that participate in the national government health service in Great Britain—“which refused to disclose an unborn baby’s sex.”

Now the reason for that, we need to note, is very, very important. That is because there are certain populations around the world and also represented in Great Britain where there is a unique preference for baby boys over baby girls, and where there is a very clear pattern of imbalance, a pattern of se- selection abortions and in some countries also infanticide. This includes most specifically the countries of India and China, although there are other South Asian countries that are also involved in this pattern. And it is largely populations that had moved to the United Kingdom from those areas that reflected this kind of sex-selection abortion pattern. In an absolutely shocking statement, the doctor speaking of the mother said,

“It’s her body and her fetus, so she should have that information … if a woman does not want to have a fetus who is one sex or the other, forcing her (to go through with the pregnancy) is not going to be good for the eventual child, and it’s not going to be good for (the mother’s) mental health.”

Now here we have to note as we’ve seen before one of the most insidious arguments in terms of the culture of death, the argument that it is injurious to a child to be born and the argument that is injurious to a mother’s mental health to require her to carry a baby to term. Again, this doctor is argued for the legalization and the moral acceptability of abortion right up until the moment of live birth. She said to the paper,

“It is a woman’s right to decide. It’s her body. She is the one taking the risks.”

The doctor then said this, very clearly,

“The fetus is a potential human life at that stage (in the womb); it is not an actual human life … I think you’ve got to concentrate on the (rights of the) woman.”

Here you see the essential logic of the culture of death, the logic that that unseen entity can’t possibly be a person because the woman’s right to what is claimed to be equality with men means that she cannot any more than a man be coerced to have a baby, to carry a baby to term.

Something seems to be happening on this front, and not only in the United Kingdom but in this country as well. Those who are arguing for abortion tend to be setting aside the euphemisms and the evasive arguments they’ve used in the past. Increasingly, they seem to be basically telling us exactly what they think. We’ve seen that here in the United States where proponents of abortion have been trying to destigmatize abortion, even by bragging about the fact that they have had abortions. We’ve seen major figures in popular culture and entertainment, one actress in particular who now infamously said that she really regretted not having an abortion because she missed out on that experience and also the ability to stand in solidarity with women who have had an abortion. It was as if she had an empty box and one central criterion for modern American feminism that she could not yet check off.

Here we see the absolute meltdown, the collapse of a secular argument supposedly for human dignity and for the sanctity of some human life that is separated from the biblical worldview that tells us that human life is indeed sacred, that it has dignity precisely because every single human being at every point of development is given life by a Creator. That modern secular worldview has no way of arguing consistently for human dignity, and that is why we’ve seen abortion become such a central issue of the modern liberal worldview. But here we see the collision between that modern worldview of autonomy and what would also be claimed as the inherent rights of women. We’re talking here about sex-selection abortions, and it is females who are most often overwhelmingly targeted for destruction in the womb. This article now comes to us as a signal that at this great turning point in our culture, if abortion and feminism come into collision, it is abortion that will win, even at the expense of the dignity of women and girls. When feminism collides with the culture of death, it’s the culture of death that wins.