There has been a fair amount of covert gloating in the liberal community over the congressional Republican flameout. Senator Bill Frist's ridiculous videotape diagnosis of the stricken woman, DeLay's toxic effusions, the President's unseemly dash to Washington to sign the Schiavo legislation all found their just rewards in the polls that revealed an overwhelming public disgust with the political shenanigans. But Democrats would be wise to stow their satisfaction and give careful consideration to what thoughtful conservatives are saying about the role of the judiciary in our public life because the issue is about to get a lot more contentious.
The Schiavo case has provoked a passionate American conversation, which is taking place on a more profound level than the simple yes and no answers of the polls. Yes, the vast majority disdain the politicians who chose to exploit the case. And yes, a solid majority would not want their own lives prolonged in a similar situation. But the questions that cut closest to home are the family issues. What would you do if Terri Schiavo were your daughter? Why couldn't Michael Schiavo just give custody over to the parents? What do we do about custody in a society where the parent-child bond is more durable than many marriages? The President's solution, to "err on the side of life," seems the only humane answerif there is a dispute between parents and spouse, and the disabled person has left no clear instruction.
The Democrats' relative silence on all this has been prudent, but telling. Their implicit position has been to err toward law. "The notion that Florida failed to do its job in the Schiavo case is wrong," said Congressman Barney Frank, one of the few Democrats willing to speak about the case. "Procedurally, there was a great deal of due process." Frank was right, but it was a curiously sterile pronouncement, bereft of the Congressman's usual raucous humanity. It exemplified the Democratic Party's recent overdependence on legal process, a culture of law that has supplanted legislative consideration of vexing social issues. This is democracy once removed.
The Democrats come to their dilemma honorably. It dates back to the civil rights movement, when federal courts had to enforce federal law in states that refused racial integration. But the courts soon wandered into unlegislated gray areas. They imposed forced busing to achieve school integration, allowed racial preferences in hiring and school admissions, extrapolated a constitutional right to privacy and declared abortion legal in the 1973 Roe v. Wade case (and more recently, on the state court level, allowed gay marriage). Many of these were worthy decisions, but they were never voted on. Over time, as the Democrats became the minority party, their efforts to hold on to this last area of solace became more desperate.
This month, Democrats may use procedural tricks to stop all Senate business and block a Republican effort to eliminate minority filibuster rights and jam through seven federal judges proposed by the President. The fight may be winnable, but it is a culture of law cul-de-sac. The Democrats will be shutting down the Senate over a matter of process rather than substance, a pinhead of principle most civilians will find difficult to understand. The Armageddon of confirmation battlesover the next Supreme Court Justicewill probably follow soon after, and it may cement a public impression of the Democrats as a party obsessed with the legal processes that preserve the status quo on issues such as abortion, gay rights and extreme secularismand little else. The political damage may be considerable.
Oddly, a solution to the Dems' dilemma may be on offer from liberal academia. "The hot new idea in liberal law journals is called popular constitutionalism," says Paul Gewirtz of Yale Law School. "It argues that legislatures and voters should have more control over government, and the judiciary should take a more subsidiary position." In other words, issues like abortion should be put to a vote. This is an idea unthinkable to most Democratic politicians, who believe the right to an abortion is tucked somewhere in the Constitutionand also to the more extreme religious conservatives, who believe abortion is murder. That leaves the rest of us. And I imagine most of us would prefer some good, messy legislative compromises, hammered out at the state level, with the unimpeachable imprimatur of public approval. Perhaps it is time, finally, for Democrats to embrace democracy.