The hysterical opposition among some Senate Democrats and their allies on the Left to President Bush’s nomination of Judge John Roberts to the Supreme Court has historical precedent. And I don’t mean Robert Bork or Clarence Thomas.
The Democrats’ furrowed-brow posturing on the Roberts nomination, and their opposition over the past four years to many of President Bush’s conservative nominees to the federal bench, is reminiscent of the party’s position and tactics on slavery in the decades before the Civil War and segregation afterward.
Throughout the Antebellum period, the Democratic Party was held in thrall to what was then called “slave power.” The Democratic Party provided the bulwark defense of slavery against any efforts, however modest, toward eventual emancipation. Whereas in the 1780s even the Founders from the slave-holding South regarded the institution as a temporary evil and envisioned its eventual demise, by 1830 southern Democrats were arguing that chattel slavery was a “positive good” established by God and endorsed in the Constitution. They argued the South’s “peculiar institution” was a permanent feature, one with deep economic, social, religious and moral roots.
The chief strategy in slavery’s defense was control of the United States Senate and Supreme Court. Throughout the decades before the firing on Fort Sumter, Democrats used the power in the Senate to block any attempt by northerners to roll back slavery — or even to slow or block its extension into new territories – and to ensure a pro-slave majority on the Court.
Throughout this period southern Democrats managed to maintain a pro-slavery majority on the Supreme Court through the exercise of the Senate’s confirmation power. Democrats argued that slavery was a matter of “settled law” that could not be tampered with even by an anti-slave majority. The Constitution recognized and protected slavery as a fundamental property right, Democrats argued. Any encroachment upon this right – the nomination of a justice with known anti-slavery sentiments, for instance — was instantly met with threats of southern secession.
This reached its epitome in the 1857 Dred Scott ruling. Chief Justice Roger B. Taney of Maryland, a Democrat, virulent racist, and vehement defender of slavery, wrote the majority decision that held African-American slaves were not human beings but property and therefore had no claim on constitutional rights.
Dred Scott made civil war inevitable. It judicially removed the issue of slavery from the sphere of political discourse. The decision neutralized the representative institutions and put the issue of slavery beyond the reach of the people’s elected leaders. Democrats hailed Dred Scott as having settled once and for all the status of slavery in America. Even efforts of limit slavery’s expansion into new territories were attacked as a violation of Dred Scott.
By the eve of the Civil War, Southern slaveholders were arguing they could freely and openly carry their property in slaves into the free states, just as they could a horse or cow, and that any restraint on the institution was to deprive slaveholders of their constitutional rights. Any effort to limit or restrain on slavery was blocked in by the Democrat minority in the Senate and by the Taney court. When the Supreme Court in Aberman v. Booth (1859) upheld the constitutionality of the federal Fugitive Slave Law–which the South had demanded on threat of secession as part of the Compromise of 1850 — escaped slaves fortunate enough to reach free soil had to be returned to their masters upon apprehension by bounty hunters, Northern sheriffs or U.S. marshals. The act compelled all government officials in the free states to enforce the law or risk large fines. Meanwhile, Southern Democrats passed state laws making it a crime to advocate emancipation, publish or demonstrate against slavery, or to otherwise oppose the institution.
If this history resonates with a certain familiarity, it almost perfectly parallels the Democrats’ current position on Roe v. Wade: Abortion is an absolute right, Democrats argue, guaranteed by the Constitution’s alleged “right to privacy” unearthed in Griswold and subsequently affirmed in Roe and Casey. Any nominee to the Supreme Court must genuflect to these precedents and accept abortion on demand without constraint as “settled law.” Any limitation on abortion–parental notification for minors or a ban on partial-birth abortion to cite but two examples–transgress the absolute right as determined by the Supreme Court. A federal law even makes it a crime for pro-lifers to demonstrate within a buffer zone around abortion mills.
The rhetoric of many Democrats today on abortion eerily echoes their party’s rhetoric (and tactics) in defense of slavery. Of course, once the South lost the Civil War and Dred Scott was finally abolished by the 13nth Amendment, the Democrats were compelled to turn their tactics to preserving segregation.
Again, the Democrats prevailed in Plessy v. Fergusson (1896) which held that race-based “separate but equal” segregation was constitutional. Plessy and racial segregation stood as “settled law” for almost 60 years until Brown v. Board of Education (1954). Throughout this period, southern Democrats successfully blocked any legislation that would even modestly extend basic civil rights to African-Americans. Not even a federal law against lynching could overcome the Democrats’ filibustering in the Senate, although the Republican House twice passed such legislation. Not until 1964 and the passage of the Civil Rights Act (with a majority of Republican votes finally overcoming filibustering by Southern Democrats) was the awful stain of slavery and segregation finally removed.
Democrats understandably object when they are reminded of their party’s sordid history, even as they replay that history over and over again with regard to Roe. When Nancy Pelosi declares that the rulings of the Supreme Court are inviolable and tantamount to “the voice of God,” as she did recently in the Kelo eminent domain case, she is unconsciously echoing the pro-slavery and segregationist arguments of her Democratic forbears. The Democrats’ desperation to preserve a pro-Roe majority on the Supreme Court is of a piece with their party’s history on race. History, it seems, does repeat.