Whatever the political benefits of this strategy, it sells the Democrats' intellectual souls. Roe is easily defended as good policy or, after 32 years, settled law. But as a matter of constitutional interpretation, even most liberal jurisprudes -- if you administer truth serum -- will tell you it is basically indefensible. Yet Democrats have made it a litmus test.
There is a better way. To begin with, the conservative approach to the Constitution is extremely vulnerable to attack. President Bush is on record many times saying that he supports "strict constructionist" judges. But even Bush's judicial allies, such as Scalia, concede that strict constructionism is a "degraded" approach that no one should follow. And for good reason. Strict constructionism traces its intellectual roots straight to the pro-slavery politicians of the 1820s and provided the jurisprudential underpinnings for Confederate secession as well as more modern opposition to Brown v. Board of Education and the dismantling of Jim Crow laws.
The jurisprudence of "original intent" -- the preferred approach of Scalia and Clarence Thomas (Bush's two favorite justices) is also deeply flawed. The point of "originalism," its adherents say, is to prevent judges from imposing their views on the Constitution; instead, justices decide cases according to what the Framers would have thought about the constitutional question at issue. This sounds good, but it is largely a sham. Despite the professed objectivity of their enterprise, originalists engage in all kinds of subjective, value-laden judgments when interpreting the Constitution.
For example, originalists still have to choose among the often conflicting views of the Constitution's various Framers. And once originalists select which Framers to follow, they have to apply this set of views to many legal questions that were beyond imagining 220 years ago when the document was written. Originalism also does not provide much guidance about how to interpret the Constitution's many indeterminate terms, such as "equal protection" and "due process," which are intrinsically contextual and were given no universal meaning by the Framers. Worse yet, originalists have to deal with the paradox that the Framers themselves apparently did not intend for future generations to interpret the Constitution according to the Framers' original intent.
Behind a false front of objectivity, moreover, the current Supreme Court's conservatives have been engaged in a profoundly anti-democratic enterprise. They have struck down more federal laws than any court in history. They have immunized states and state officials from being sued for violating certain laws. They have given a free pass to the political gerrymandering of electoral districts that has fostered the extreme divisions and gridlock that are now the hallmark of Congress. They have watered down protections against government intrusions in our private lives even as technology has multiplied the government's power to monitor our every move and chart our every commercial interaction.
Liberals do have a principled constitutional vision to set against this conservative record. This vision embraces democratic principles of governance, a strong federal role in solving national problems, and a broad but not unfettered view of civil rights and civil liberties. This vision is grounded not in personal preference, but in the ideas actually expressed in the text of the Constitution as read in light of its history, subsequent experience and precedent. A Civil War was fought to elevate federal power over the rights of states and to secure equality, procedural fairness, and the privileges and immunities of citizenship to every person in this country. The Constitution explicitly grants these guarantees and it is the warrant of judges to apply them against the perceived needs of our time.
Putting forth this vision in a convincing manner, however, will require liberals to liberate themselves from the intellectual shackles of Roe. If conservatives have proven anything over the last generation, it is that a clarity and integrity of ideology ultimately translates into political power. The upcoming hearings present an ideal chance for Democrats to start to heed that lesson -- and O'Connorism should be no part of their plan.
Edward Lazarus, a lawyer in private practice, is the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court" (Penguin). He is a former assistant U.S. attorney and clerked for Associate Justice Harry A. Blackmun at the Supreme Court from 1988 to 1989.
