God (or Not) and the Judiciary

The campaign for Senate confirmation of President Bush’s judicial nominees got serious Sunday. God took a hand.

What kind of hand we can’t tell, of course, given the Lord’s engaging propensity to move in mysterious ways, His wonders to perform. Still, the Family Research Council’s “Justice Sunday” telecast-cum-rally, featuring Senate majority leader Bill Frist and broadcast potentially to millions of church-goers, was by any reckoning an event. The organizers hope, by mobilizing evangelical Christians, to deter Democrats from blocking conservative judicial nominees via filibuster.

The Democrats fired back: Nothing less, they urged, than the right of free speech hangs in the balance as Republicans maneuver to gag inconvenient minorities seeking to air urgent matters. A liberal evangelical, Jim Wallis, called “Justice Sunday” “an attempt to hijack religion.”

“What goes on here?” is an entirely fair question, except that, in the big picture, only God Himself knows. In the smaller picture, what goes on is the working out of … Brown v. Board of Education.

You didn’t expect to hear that, did you? You expected to hear Roe v. Wade, which proclaimed, as we all know, a constitutionally protected right to abortion. Why Brown v. Board of Education, which proclaimed the constitutional duty to abolish public school segregation? Because Brown marked the first big occasion when Americans ceded power to the federal courts to patrol their nation’s moral perimeter, a job previously reserved for the states.

Integration, because of the fervent and righteous support it came to enjoy, opened the door for the U.S. Supreme Court to federalize abortion questions, as earlier it had federalized race relations. That’s where we segue into the filibuster question: Should Democrats, or shouldn’t they, block the seating of judges viewed — here’s what it comes down to — as likely to overturn Roe v. Wade and perhaps also to deny the asserted right to gay marriage?

Of course they should, you’re likely to say, if you’re a Democratic senator dependent on the abortion and gay rights lobbies. Of course they shouldn’t, you’re likely to say, if you’re a Republican senator dependent on pro-life and evangelical votes.

That way of putting things seems to make no room for earnest, unpolitically related convictions on either side. I don’t mean that. I mean anyone can play for high reasons or low ones the game of moral politics — a game whose stakes increase as our collective dependence on the federal courts increases.

We wouldn’t be having this discussion if federal judges weren’t up to their black-robed necks in the regulation of manners and mores. We want the kind of judges likely to agree with us (whoever we are, whatever we believe) on manners and mores. Because if they don’t agree with us, they may force on us policies contrary to conscience and faith.

There. That’s what this thing is about — not about God so much as about the variant ways of reading the Almighty’s will and intentions.

As it happens, I agree with the premises of “Justice Sunday’s” organizers and disagree with the organizers’ critics. At the same time, I think we need not be surprised to discover heels-dug-in opposition to the Bush plan for appointing conservative judges — the sort who might repudiate notions of a federal right to oversee, and prod along, American morality in unforeseeable ways. The Democrats now know that two can play at the game they have played so adroitly — the federalization of moral questions. They should feel complimented. They led; the chiefly Republican organizers and participants in “Justice Sunday” followed.

The present conflagration over lower federal court appointees is the warm-up, so to speak, for the war that will start the instant President Bush seeks to fill the first Supreme Court vacancy in a decade. We’re going to hate every minute of it, I promise. We’re going to rage and snarl and shake our fists at each other and say things related more to the nominee’s presumed intentions than to his qualifications and character. We’re going to get down and dirty and low and nasty.

Heaven help us.