The Harriet Miers act was dreadful, the only person to emerge with any dignity and grace being the principal actress herself. She was steady in her presence and graceful, even generous, in leaving the stage to the familiar antagonists. Pontificators from the high right questioned her intelligence, even ridiculed her. Senators from the left, while patting her on the back, promised to demand a betrayal of executive privilege as the president’s lawyer. Evangelical conservatives worried about a contribution she made to Al Gore and feared that she was a stealth pro-choicer, like so many other Republican justices. They could not be satisfied by the assurances that she was truly born again, so she left the stage, banished by right and left alike.
We are in the midst of Act Three. Enter Samuel Anthony Alito Jr. The first rumblings from liberals are not reassuring. He is an extremist. He is not mainstream. He is a radical. He is a member of the Old Boy’s Club. The harder-line Republicans, thrilled by the nomination, seem to long for a good polarizing fight. It’ll be a slugfest, said one. We will be one party again, offered another. They seem not to want a principled civil argument, but a clash of clans.
One can be sure that there are opponents to Alito’s nomination who will seek out any suggestion of scandal, expose any questionable aspect of his ethnicity or religion and sound alarms over every previous opinion he may have writtenbut without the crucial context, his nuance or his moderation.
If you want to be totally ideological, even restricting your interest to the issue of abortion alone, you will be able to attack Alito from both sides. The purists of right and left could have a field day. For the extreme pro-choice clan, the very words of his mother condemn the man: Of course he’s against abortion. And in 1991, he ruled that women seeking abortions could be coerced to inform their abusing husbands. (But friends, the more you look into the judgment, the less cold and unsympathetic Alito seems in applying Justice O’Connor’s undue burden principle.)
The extreme pro-life clan can be even more upset. Three times he supported abortion rights, they could say. He supported Medicaid funding for abortion. He does not believe in the wrongful death of a human fetus. He supports partial-birth abortion just for matters of a woman’s health. None of these statements is fully true. No one is fully false, either. One must look and read, deliberate and decide.
There is still time to hope that the Senate Judiciary Committee will mount hearings to do just that. Instead of the canned campaign speeches, they might, each taking a minute, voice the concerns that motivate their questions. Instead of singing his praises and wooing their constituents, they might inquire how, under the law, he could rule in favor of a position that he personally opposes. They might concern themselves with the cohesion of our civil society and not the extremist clamor of right-wing and left-wing clans. Then we would all avoid the fate of hardened ideology.
As Mercutio dies at the hands of Tybalt, Romeo ignorantly making the assault fatal, he three times calls a plague on the warring houses of Montague and Capulet. Amid the curses, he has humor even in death. As to the mortal wound:
No, ’tis not so deep as a well, nor so wide as a church door; but ’tis enough, ’twill serve: ask for me tomorrow, and you shall find me a grave man. I am peppered, I warrant, for this world. a plague o’ both your houses.... Why the devil came you between us? I was hurt under your arm.
Even sincere souls, mindlessly fixated on their aims and resistant to evidence, wreak harm. In this endless warring of families called political parties, we can only hope that what is killed in the process is only a passing Mercutio or judicial nomination, and not deliberative democracy itself.