Time to Play For Keeps

The Supreme Court's Carhart decision was, in a word, terrifying. It established that a five-member majority of the Court -- three of whom will likely retain their seats for another 20 years -- might, given the "right" circumstances, go beyond turning Roe v. Wade back to the states and establish as federal precedent that virtually all abortions are illegal.

Think about this. It is the standing presumption of advocates on both sides of the fight that, if Roe were overturned, the Court would do so by saying that abortion should be a state matter. Bleak as this would be for women in much of America, at least something like a dozen to 15 states would probably assume their prerogative and pass laws making some abortions legal.

But Carhart sends a signal that even this scenario could worsen. If, someday, a Republican president and Republican Congress manage to pass further (and ever more onerous) federal laws banning specific abortion precedures, Carhart has likely provided the precedent for the Court to uphold them

It doesn't look like Republicans could build such majorities in both houses of Congress in the foreseeable future. But in October 2001, it didn't look like the United States of America was going to disgrace itself by waging a war that was based on a pack of lies, either.

Meanwhile, John Paul Stevens, God bless him, just turned 87. One prays, for his sake and ours, that he can hold on until January 21, 2009, when a Democratic president takes office, and he can retire and go fish or golf or play mah jongg or whatever it is he likes to do. But let's face it. We all know that George W. Bush might get one more shot at the High Court.

If he does, the Democrats have to stand up -- and not only on abortion, but on a range of vital issues. The days of politely probing into "qualifications" and "philosophy" and obsequiously chuckling at the nominee's phony self-deprecations are over. And the men who run the Democratic Party better know it.

I know that Chuck Schumer knows it. On June 26, 2001, he published an unusually honest op-ed in The New York Times arguing that the Senate should ask Supreme Court nominees about their ideology. "If the president uses ideology in deciding whom to nominate to the bench," he wrote, "the Senate, as part of its responsibility to advise and consent, should do the same in deciding whom to confirm."

I praised Chuck for the column at the time, when I was writing for New York magazine (check out Schumer's quote to me about John McCain), and I praise him for it again today. But now, with his party in the majority and with so much at stake on abortion, racial integration of the schools, environmental law, federal authority, and other matters, I hope he's re-circulating his old op-ed to his colleagues.

So, next time, what should Democratic senators on the Judiciary Committee do? They cannot ask the next Bush nominee, if there is one, how he or she would have decided on X. That's a weak invitation to an easy side-step: I can't say, didn't read the briefs, et cetera.

What they need to do is ask such a nominee what he or she believes, using real-world examples. This fiction that judges have no beliefs and only interpret law this way or that way is transparent. Democrats need to say so and press hard for a nominee's beliefs.

The Court is about to hear cases from Louisville and Seattle on school integration. A true conservative should support integration in this case, because in both localities the policy was set by legislatures (the direct representatives of the people) at the local (that is, non-federal) level. Democrats must ask a nominee, well, which are you more committed to? Local legislative decisions, or aversion to racial remedies of any sort?

They should press until they get an answer, and if they don't get an answer, they should -- they must -- tell the nominee that no answer isn't good enough. They will be attacked for doing so -- accused of imposing "litmus tests." They must stand up to this drivel. The litmus tests will have been imposed in the first place by the man who made the nomination. Everyone knows that, and there's no point in pretending otherwise.

And pretending otherwise amounts to playing around with women's autonomy, black children's education, and other questions that these Democrats profess to care about when they're headlining gala dinners of organizations in their states that give them awards. They get those awards in part because their presence can sell tables. But they also get them because they're "great defenders" of this or that. After Carhart, it's time for them to prove it.