In GOP We Trust?

By Michael Tomasky, The American Prospect. Posted November 22, 2004.

One of the longstanding criticisms of liberalism going back to its heyday involved the extent to which it relied on the courts to gain victories that could not have been achieved legislatively. School desegregation, abortion rights, and less well-remembered anti-miscegenation laws, struck down by the Warren Court in its Loving vs. Virginia decision of 1967, were all judicial triumphs for liberalism, not legislative ones. Advocates of each cause chose to go through the courts specifically because they knew that the odds on achieving these goals through legislation were slim.

The criticism – to which there is a lot of validity – is that getting too far ahead of the popular will, as these and other decisions did, created backlash. And of course it was exactly that backlash, exploited by Richard Nixon and Ronald Reagan (and still being exploited today), that contributed to liberalism's decline. Time has long since caught up with the Warren Court, if not on the still divisive issue of abortion, at least on racial questions. No one today would argue that Loving or the more historic Brown v. Board of Education were wrong, indeed, I would argue that it took a lot of courage for the Supreme Court to hand down these decisions. Nevertheless, the criticism has validity because undergirding it is the assumption that legislative action more accurately reflects the people's will.

But that assumption is being mightily challenged in the waning days of the current Congress. Yes, the Republicans won their majority fair and square over the course of the last decade (fair and square except for the possibly illegal Texas redistricting). But they seem awfully less interested in conducting the people's business than their movement's.

Just last week, Republican congressional leaders made three power moves – just because they could. Senate Majority Leader Bill Frist threatened to break decades of tradition, which developed when both parties were in power, and employ a rarely used procedure (called "the nuclear option") to prevent Democrats from mounting a filibuster against any judicial nominations. The GOP has played this whole debate with admittedly masterful cynicism, making the Democrats look like "obstructionists" even though nearly 200 of George W. Bush's judicial nominees have been approved and just a handful have been blocked.

Second, they tossed into a spending bill a provision that would greatly expand an existing law by which hospitals and other health-care providers could deny abortion services to women and still receive federal funding. And third, they tried to sneak into the same bill a provision that would have allowed certain committee chairs and their staffs a carte blanche access to the tax returns of individual tax payer. On this last one, some unknown, eagle-eyed, and probably Democratic staffer caught the provision, buried deep in a several-hundred-page omnibus bill. A few Republicans feigned outrage, and a smaller few actually were outraged. But while Republicans promised to back off this proposal, there's little doubt the effort was deliberate. All this of course comes in the wake of the incredible DeLay rule, which again breaks all precedents and would permit House Majority Leader Tom DeLay to retain his post if he's indicted.

Michael Tomasky is executive editor of The American Prospect.

Copyright © 2004 by The American Prospect, Inc. Preferred Citation: Michael Tomasky, "Will of the People?", The American Prospect Online, Nov 22, 2004. This article may not be resold, reprinted, or redistributed for compensation of any kind without prior written permission from the author. Direct questions about permissions to permissions@prospect.org.

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