Nuclear Harry:

Justice Harry Blackmun is ultimately responsible for ending the Senate filibuster? That is what David Brooks suggests in today's column.

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.

It's actually a serious argument (even if Brooks might overtstate the case). Justice Blackmun's Roe opinion removed the issue of abortion from democratic politics. The result, Brooks argues, is a rechanneling of pro-choice and anti-abortion fervor into the fight over judicial nominees. Instead of a series of state-by-state compromises over abortion, there is one national, all-or-nothing battle in federal courts, and each side has rushed to the brink of nuclear armageddon.

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.

Brooks is making a serious point, but I think it's a mistake to think the war over judges is all about abortion. There are plenty of other sensitive issues that judicial decisions have removed from the democratic process, and plenty of pro-choice Republican Senators who seek to end Democratic obstruction. It is also important to note that overturning Roe, by itself, would not be a pro-life victory. All it would accomplish is returning abortion policy to the states, many of which would never severely restrict, let alone prohibit, the practice.

Despite his hostility to Roe, Brooks is luke-warm about the nuclear option, and I share his misgivings. The Democratic filibuster of appellate judicial nominees is unprincipled and unprecedented, but so too is the proposed Republican response. End the filibuster for judicial nominations, and eventually it will disappear for substantive legislation as well — and that will not be a good thing. As Brooks notes, "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."

So killing the filibuster means confirming a few more judges (and justices), but could also mean the further erosion of limited government. That doesn't seem like such a good deal. Can we really blame it all on Harry Blackmun?

Althouse on Brooks:

David Brooks suggested that American politics will be hopelessly bitter so long as Roe remains the law in the land. (See my post here.) Ann Althouse doesn't think it's that simple:

it's not possible to redo the last 30 years. We already are where we are, and those who think abortion should be legal have spent these decades -- or their whole lives -- thinking abortion was not only legal but a constitutional right. To take that right away now would not give us a chance to have the democratic debate we never had. It would be a wholly different experience of taking away a right, after the bitter politics had built to the level where the side opposed to the right has finally gotten its way, after we have already become polarized. What makes you think that won't be insanely bitter?

I think she makes a very good point. It is one thing to suggest that the judicialization of controversial policy questions helped embitter American politics. It is quite another to suggest it is possible to reverse course. History moves ever onward.