Wednesday, May 13, 2009

Two thoughts about the pending Supreme Court vacancy...

Some prolifers have made the point, see this is why McCain would have been better than Obama. Well, of course only God can really know what would have been. But I point out to you that had McCain won, and he was faced with a heavy Democratic majority in the Senate, just who do you suppose he would be looking to nominate right now? In that alternate reality, I think we'd be very lucky to get someone as good as Justice Kennedy--i.e., someone who votes right on some things, but who, yes, upheld the Partial Birth Abortion ban, but who voted to uphold Roe in 1993.

You may say, oh, but McCain said he'd offer better nominees. Yes, he said that; but you're kidding yourself if you think McCain--in this present situation, with Afghanistan, Pakistan, Iran, the economy tanking, etc.--would go ahead with a nominee who would face long odds of confirmation unless McCain made a huge fight of it. Also: while I believe that that would be worth doing, even if the nominee got defeated, I think it's foolish to assume McCain and his folks, in the White House, would have beleved that.

Rather, I think President McCain would want to get someone who would be "acceptable" to the right, but also who would be confirmed and he would have a win and he could move onto other pressing matters. And his folks would surely go out and work the circuit, ahead of time, to convince the right that the pending nominee would really be better than it might seem, and anyway, the "best we can get in this situation," andanyway, everyone needs to be a team player.

If that sounds vaguely familiar, it is pretty much what John Sununu, chief of staff for the first President Bush, said and did when the White House chose David Souter. The situation was similar, except the Democrats did not, I believe, have as large a majority in the Senate as now--something a McCain White House would cite endlessly to explain why they didn't offer anyone better: "get us a GOP Senate in 2010, and then we'll put up better nominees.

As you may have noticed, the chatter--while everyone waits to see who the President will pick--has included, "will he go mainstream or go for an ideologue," or some variation. Some are talking about this as if it matters. I think it doesn't much matter; or, rather, it matters, but there are benefits either way so don't worry about it.

Start with the supposed worst-case: he picks some really wild, out-there leftie, but who also has all the right ethnic, gender and other "qualifications" that make the Senate and the media swoon.

Yes, they'll all gush over the "youthful" Hispanic, female judge, who grew up in the South Bronx amid gunfire every day--thus she suffered the injury that leaves her in a wheelchair to this day, (cue boos to the gun lobby and those who oppose embryonic stem-cell research), and went to Harvard, Yale and Oxford thanks to Pell grants and loans, graduating summa cum laude, and who--when she isn't empathically dispensing justice for all and sundry, lives with her gay partner--oh, did we mention she's gay?--in an ecologically sustainable ashram in whatever state is deemed most valuable to get or keep in the 2012 election. And then she'll come before the cameras, and she'll be beautiful, brilliant, and funny, and the Republicans will all fall at her feet as though dead.

Well..maybe. Rather, I think it is more likely that, apart from the preferred narrative of the White House and the big media (which I just gave you), is that it won't be long before someone finds all the whacko things she ruled in favor of, and it won't be much longer before someone--either inside the Senate or outside--makes a big stink of it and a political fight.

"But she'll still get confirmed!" Probably; maybe; but suppose she does? Do you really think this new justice is going to take control of the Court because the New York Times thinks she's the new Oliver Wendell Holmes? This supposed nominee would be to the left of everyone now on the Court--she's going to win over Kennedy, and keep Breyer and Stevens, for every flaky thing she wants? Sorry, it's a bit far-fetched. These folks on the High Court did not arrive where they are so they can simply be empty receptacles for someone else's "brilliance." They will offer their own "brilliance," with which they are, of course, intimately familiar. Haven't you ever noticed how frequently the Court's decisions come down in fragmented decisions--not just a majority and minority view, but partial assents and dissents?

Meanwhile, what do you suppose will be the impact on the political fortunes of those Senators, in competitive states, in their next re-election, of a vote to confirm this justice? Every whacko thing decision and vote, before and after, will be tied around their necks. And that of President Obama.

Maybe the White House and the Senate majority are fine with that; but I suspect cooler heads will prevail.

Perhaps you say, no, the worst-case scenario is not this, but a "stealth" candidate. You mean another Breyer or Souter? My point is, (a) these guys are occasionally reasonable and (b), why is a new Souter for an old Souter such a terrible peril? Who knows? The new "stealth" candidate may occasionally be good on something, a marginal improvement.

The choice for the White House remains: either pick someone "reasonable" and "moderate" and go with a quicker confirmation battle--that means status quo--or else go for the ideological home-run, go with a "game-changer," and then we have valuable, useful political fight that will do three things: (a) mobilize prolifers and other good folks to get involved and make a difference; (b) create problems for any Senators who vote for such a polarizing figure and (c) bring front-and-center to national attention the problem of judges who invent law, rather than interpret it.

And, I maintain, even if such a Justice Granola gets confirmed, it still won't change the outcomes of the Supreme Court much, if at all. Because if Justice Kennedy is really that wobbly, then we never "had" him to begin with, and this doesn't really change anything. It's like saying, the problem in the crumbling door isn't the termites, but that you pushed against it.

Oh, and one other benefit, which I've mentioned before: all the time and energy spent on confirming the left's essential fourth vote on the Court is time and energy not spent on a host of other things President Obama, and his allies in Congress, want: government takeover of health care, carbon taxes, Big Labor power grabs, and so forth. And that's true even with a "consensus" choice, because it will still take some time; and even more true with a extremist nominee. Since I believe we are better off to the extent Congress is busy with trivialities, a huge fight over a Supreme Court justice could be a really good diversion for the next six months or so.


Rudy said...

Lesser of to evils? I don't think Father, that McCain, even in his worse form, would have been worse than Obama for the Catholic cause. Of course presidents do not have to toe the line of any Church or doctrine, but Mr. Obama is doctrinally and philosophically as opposed to Catholic teaching as he can. It has been repeated many times that he is the most radically pro-abortion president ever, and it is true.

Rudy said...

By the way, glad to see your blog. Similar trajectory here, I was born a Catholic (baptized as a one year old), but my family was not practicing. Grew up agnostic, then for a while thought that I was an atheist, then went back to agnosticism, then a fogy deism. Later in life members of my family became protestant Pentecostals and I almost followed in. Thank God I finally came back to the Church in 1993, went through RCIA 1995-1996 and have tried to live according to the Church's teachings ever since. The Christian life is a struggle, but where else can we go?

Father Martin Fox said...


Glad to have you visit and welcome back home!

I don't believe my argument is properly summarized, "lesser of two evils." My point was as I expressed it -- that it's too facile to say, as some are, that, "oh, we'd be better off having McCain make this Supreme Court pick." I think the circumstances, with the Democrats controlling the Senate, would have dictated a very unsatisfactory nominee. I suppose, for some, another Souter (i.e., what we might have expected from McCain had he won) is "better" than whoever President Obama might pick, but I'm not seeing that.

Afro Seminarian said...

Fr. I really enjoy reading your blog,and it is soo great to see a priest who is up to date on what is going on with this country. However, I disagree with you on one statement. "bring front-and-center to national attention the problem of judges who invent law, rather than interpret it."I dissagree witht this because it is usally the courts that has forced the executive and legeslative branch to protect its citizens.If it were not for the courts, I would be still sitting at the back of the bus. Public opinion does not always demonstrate what is best for everyone.

Otherwise, keep up the good work.

Anonymous said...

I think, Fr., that you should very carefully consider what you write on this blog. In this episode you make some very partisan comments. Whether I agree or disagree with them is immaterial. What is critical is that a minister should never delve into partisan politics. It could have devastating effects on his church -like losing tax esempt status. Whether you realize it or not you are coming very close to the line, if not actually stepping over it with some of your comments above.

Father Martin Fox said...


Thanks for your concern, but you are mistaken.

I can say anything I want about politics, here and anywhere else, without jeopardizing the Church's tax-exempt status.

The only thing that would create a potential problem would be if I endorsed or opposed a candidate, in my official capacity--say, if I did so at Mass, or if I did so in my church bulletin, etc.

But I could endorse a candidate here, if I chose, as a private citizen.

Now, I won't do that; I haven't done that.

Nor are my comments "partisan." If you think I'm favoring one party over the other, please identify the party that I am favoring? I'd be interested to know your guess.

But my being a an ordained minister does not reduce my rights under the First Amendment in any way.

Anonymous said...

Identifying yourself as a catholic priest in your blog seems to me to remove you from the private citizen category. It, at laest, appears that your writings are from a priest, not a private citizen. Maybe, to be safe, you should run this by your home office. They probably wouldn't be pleased to be blindsided by something you said that may cause a rucus.
As for guessing your affiliation, that is fairly simple. Your post is riddled with right wing republican catch phrases and wild ranting claims, i.e. "problem of judges who invent law, rather than interpret it", "govt takeover of healthcare" , "big labor power grabs". And stating that a supreme court nominee battle would have the benefit of keeping Presidant Obama from getting other things that he wants. And you sound a bit arrogant (for a humble priest) about your right to say anything you want, any time you want. All of this puts you smack dab in the center of the "loyal opposition". Someone who was trying to be neutral would never use the terms and phrases mentioned above.
I do have concerns about the abortion issue but I think we need to look at the entire body of work and at least give the man credit for proposing programs that help reduce the chance for a woman to seek an abortion. It will be interesting to see what the results are in four years, if in face, he can get those programs implemented. And if the battle is long and protracted, how many lives will potentially be lost because he couldn't get these programs enacted because the pro life radicals are forcing him to spend his time elsewhere? And upon whose conscience will those deaths reside? A very complex issue.

Father Martin Fox said...


Are you kidding me?

1. You actually believe because I'm a priest, I can't express my views openly about politics or anything else? What part of the First Amendment addresses that?

2. A priest is a "private citizen"--as far as the government is concerned.

3. What does humility have to do with it? St. Paul asserted his rights as a Roman citizen, and I am fully entitled to exercise my rights as an American citizen. Why do you have a problem with that?

4. The "home office" is fully aware of my political views and has every opportunity to ask me about them, and tell me to pipe down. (See the more recent post--the "home office" visited yesterday, and we had dinner.) I think I know the Archbishop's approach to this at least as well as you; and he has given his guidelines and our parishes follow them. He's never told his priests they cannot express their political observations publicly.

5. You still didn't specify what party you think I belong to. But if you think I'm a fan of the Republican party, you clearly haven't read much of my site.

Anonymous said...

Oh, Father, you are funny. I do admit that I haven't read many of your blogs. But I have read enough to identify you with the republican party. Maybe in your mind you might think you aren't one but your writings give you away. Or maybe you're just saying that to cover yourself or try to throw us off.
Maybe others would like to weigh in on the subject. That would be interesting.

Father Martin Fox said...


When you are looking at my main page, there should be a box somewhere at the top, that says, "search this blog."

Type "Republican" in and hit search. See what comes up.

Anonymous said...

That's even funnier. Or you must think I am a complete idiot. What you suggest would prove nothing. It's how you say what you say that proves my point. Whether you wish to admit it or not is immaterial.

Father Martin Fox said...


No, I don't think you are an idiot. But I hope you can see I'm very critical of the Republican Party.

Oh well. I think it's funny that my expressing my opinions bothers you so much.

Anonymous said...

Your comments don't bother me in the sense that you are probably thinking. Everyone is entitled to their opinion. My concern was for your church and congregation. But since you insist you are on solid ground I will not bother further.

JeanS said...

Father Fox - great interchange with 'anonymous' - I'll say a prayer for him.

Anonymous said...

Why, thank you, Jean, that is very kind of you. I certainly appreciate any prayers offered on my behalf. And I will remember you in my prayers. And let us both lift one up for Fr. Fox.

Mattheus said...

The definition of "humility" in its proper context is not to be a doormat or never speak up when called for; rather, humility consists of submitting to truth. Mother Teresa was arguably an individual of great humility; yet, when invited to speak in this country before a high profile audience, she spoke on abortion, not worrying about ruffling feathers. Her humility required her to do so.

Mattheus said...

Having known Fr Martin for several years, the mere suggestion that he is a Kool-Aid drinking Republican is, to me, a great and racuous laugh! I can assure everyone out there reading this blog that he is no such thing (and to his credit).

(Nor am I a Democrat - perish the thought!)

Peyton's said...

I just had the opportunity to read the conversation. Some people are just so narrow minded! I am glad that we have a priest that holds the same values and views for our country as us.