In the last day of their questioning of Judge John Roberts in the Senate Judiciary hearings for his confirmation as Chief Justice of the United States, Senators Kennedy, Biden, Schumer, and to some extent Feinstein spent a good deal of time talking about why they thought they were rolling the dice with him. Schumer in particular expressed something clearly that all four of them were getting at in their final speeches. Schumer started by saying that he didn't expect Roberts to go against his stated intentions not to comment on cases that might come before the Court. He said he had hoped for a little bit more on Roberts the man, how Roberts as a person feels about certain sorts of things. Kennedy had accused Roberts of being mean-spirited due to certain of the views that he argued for as a lawyer representing the government position. Biden, Schumer, and Feinstein had insisted that they didn't have enough information to judge his character. Yet, on every issue their evidence that they didn't have a grasp of his character, it was because they didn't know what his view was on issues that concerned them. After hearing this all morning, Lindsay Graham stepped in to challenge the assumption behind all this talk about where Judge Roberts' heart lies.
What follows is Graham's speech, taken from the WAPO transcript:
Your heart -- nobody can question your intellect, because it would be a question of their intellect to question yours...
... so we're down to the heart. And is it all coming down to that?
Well, there are all kind of hearts. There are bleeding hearts and there are hard hearts. And if I wanted to judge Justice Ginsburg on her heart, I might take a hard-hearted view of her and say she's a bleeding heart. She represents the ACLU. She wants the age of consent to be 12. She believes there's a constitutional right to prostitution. What kind of heart is that?
Well, she has a different value system than I do. But that doesn't mean she doesn't have a good heart.
And I want this committee to understand that if we go down this road of putting people's hearts in play, and the only way you can have a good heart is, "Adopt my value system," we're doing a great disservice to the judiciary.
What's most interesting about this is that it seems on the surface to be the reverse of what you'd expect from a Republican criticizing his Democratic colleagues. It sounds as if the Democrats are taking the moral high ground in the sense of standing by their moral convictions, while a Republican is offering some sort of moral relativism to critique their judgments of Roberts' moral views. I think it's a mistake to see it that way, however. Graham recognizes that people have different moral views, some that he takes to be correct and others that he takes to be incorrect. Schumer and company are doing the same thing. It's quite clear from both parties that they're not working from a meta-ethics of relativism. The difference is not in whether they accept all views as legitimate. It's whether they can display the virtue of tolerance for those who disagree out of genuine moral disagreements. It's whether they can attribute moral character to someone whose views are very different in their outworking but who are starting from the very same point of an attempt toward moral decency, toward recognizing basic human rights, toward working out the balance of the many values that conservatives and liberals start with that they tend to balance out in different ways.
A helpful example is abortion. Conservatives on this issue do not hate choice. They are not opposed to women making choices to control their bodies, despite the narrow-mindedness of people like Schumer who claim otherwise. They do not seek to control women's bodies. That is not the fundamental value that drives opposition to abortion. They simply consider the personhood of the fetus and the value of human life at the pre-birth stage to be more important than the importance of giving women autonomy, in the same way that we all value the life of the ordinary adult or child over the autonomy of anyone else who wants to kill or rape them. On the other hand, pro-choice proponents do not hate life, despite what many pro-life activists will assert. They are not propagating a culture of death, at least not deliberately. They do not consider abortion a good thing. They just consider the value of the life of a fetus, whom they deem not to be a person with moral status (or with enough moral status to make a difference in some cases) to outweigh the importance of a woman's autonomy over her own body
It's unfair to either side to say that it does not consider the primary value of the other side (life or choice) to be unimportant. It's unfair to either side to say that they are necessarily morally insensitive, as if they don't consider the arguments of the other side to have some weight. For some people, this is surely true, but it doesn't necessarily follow. Someone can be pro-choice and consider abortion a tragedy but one we necessarily should allow because of the higher value of individual autonomy. I happen to find this to be backwards thinking, but I can't question the good-heartedness of those whose values are aligned that way. I think it's the wrong view, and it has disastrous consequences, but those who hold it may be of good character. Someone who holds the pro-choice position and the same meta-level view I'm defending here should say the same of me.
What Graham is trying to say here is that the kind of political game Schumer and his colleagues are playing here is really the greatest kind of intolerance you can find. It's the very thing liberals will often point out among less careful conservatives. Graham is simply pointing out that it's rife among mainstream liberals in the Senate. It is, indeed, a kind of mean-spiritedness that makes itself obvious to anyone paying attention. If these senators think the values that mainstream liberalism in this country at this time are taken to be so absolute that no one can be good-hearted without them, if the views that Schumer, Biden, Kennedy, and Feinstein happen to have at this point in their lives are the only ones someone can hold and possess the kind of moral character that moves someone to be concerned about the children of immigrants, the discrimination that some people have to face, and the equality and autonomy that all people are guaranteed by the Constitution, then I think they need to reevaluate how open their liberal minds really are. The sense that I get from hearing what they're demanding of John Roberts is that they consider someone to be hateful and mean-spirited simply for holding a different view on what will best carry out some fundamental values that all parties in the discussion share. This is a standard debate tactic against certain conservative views, and it's manipulated many voters by its deception. It's probably the most dominant meme in liberals' control over the sentiments of black voters (there aren't usually arguments to convince, just the charge of meanspiritedness against conservatives in exactly this way).
It's not mean-spirited to hold a different view on the practical level that comes from the same fundamental values. What's mean-spirited is to suggest that those who hold such different views must necessarily be mean-spirited, and I do believe I witnessed exactly this sort of mean-spiritedness from Senators Kennedy, Schumer, Biden, and to a lesser extent Feinstein during the closing comments of their time with Judge Roberts this week. Maybe there's something I'm missing about this, but that's exactly how it seemed to me, and I credit SenatorGraham for saying exactly what needed to be said to clarify what was really going on in those speeches. For further thoughts on the same issue in a different context, see Laurence Thomas' latest post, Open-Mindedness and the University.