In an oddly Gertruded op-ed. Linda Greenhouse disclaims any position against the confirmation of Circuit Judge Neil Gorsuch for the Supreme Court, possibly in response to Judge Richard Kopf’s castigation of Greenhouse’s turning everything into a diatribe against Donald Trump. This time, Greenhouse goes explicit in her proclamation of her own fair-mindedness.
Some readers have assumed that my references to Judge Gorsuch in recent columns have been meant to convey opposition to his confirmation. That’s not true. I’m not opposed to his confirmation, at least based on what I know now. Lengthy reports from progressive groups endeavoring to show that he is “unqualified” only squander liberals’ credibility, which will be sorely needed for battles ahead in the post-factual era in which we find ourselves. That the Supreme Court vacancy is not rightfully President Trump’s to fill, given the Republicans’ blockade of President Barack Obama’s nomination of the even better-qualified Judge Merrick B. Garland, is a separate question.
On its face, this seems eminently reasonable, if a paean to Democrats. Dig a little deeper, however, and one can see that it’s just a wee bit disingenuous, since Judge Gorsuch isn’t exactly an unknown quantity (” at least based on what I know now”), having sat on the Tenth Circuit for more than a decade, after being unanimously confirmed for that seat by the Senate.
On the other hand, Greenhouse offers some sound, if grossly belated, advice:
I totally understand and share the Democrats’ anger over what happened. But assuming Judge Gorsuch’s satisfactory performance next week, it’s time to bring the Supreme Court to full strength, replacing one conservative with another (whom any Republican president would have strongly considered) and saving the Democrats’ fire for the big battles ahead.
The incessant shrieking over everything, from the serious and potentially catastrophic to the most banal and trivial thing about Trump has squandered the credibility of the opposition. When the sky is falling because of everything, the cries can’t be taken seriously.
But Greenhouse quickly recovers from her momentary lapse of reasonableness to tell the story of Bork’s confirmation hearings during the Reagan administration.
In recent days, I’ve been thinking about one particular exchange from Judge Bork’s week before the Senate Judiciary Committee, a colloquy between the nominee and Senator Paul Simon, an Illinois Democrat. Senator Simon asked Judge Bork about a speech he had given two years earlier, in which the nominee said that “when a court adds to one person’s constitutional rights, it subtracts from the rights of others.” The senator asked, “Do you believe that is always true?”
“Yes, Senator,” Judge Bork replied. “I think it’s a matter of plain arithmetic.”
Senator Simon: “I have long thought it is kind of fundamental in our society that when you expand the liberty of any of us, you expand the liberty of all of us.”
Judge Bork: “I think, Senator, that is not correct.”
Why bring this into play? Greenhouse explains.
A zero-sum theory of rights: In the weeks since Donald Trump’s inauguration, we’ve come ever closer to the zero-sum society that worried a leading Democratic senator a generation ago and struck a Supreme Court nominee as a matter of simple, inevitable math. The grant of nondiscrimination protection to transgender children, surely among the most vulnerable and harmless residents of our big country, is portrayed as having taken away rights from others — to do what, exactly? Undocumented immigrants have to be carted away while dropping their children off at school because their very presence among us, tolerated (and exploited) for decades, is deemed an affront to those of us lucky enough to descend from immigrants who got here before the gates slammed shut.
What if neither Senator Simon nor Judge Bork had it right? Greenhouse denigrates “a zero-sum theory of rights,” which isn’t necessarily a bad thing, though she lacks the depth to appreciate that maybe, just maybe, not everything she prefers to call “rights” enjoys the same impact. Despite her effort to rhetorically wash away the problems with the manufacture of transgender rights, there is a clear and obvious consequences for the privacy rights of others. These may not be of much consequences to Greenhouse, but then, her values don’t trump other people’s values. Unless you’re Linda Greenhouse, in which case the only values that matter are hers, and anyone who holds other values dear are unworthy of consideration.
So what’s the alternative to Greenhouse’s simplistic, if misguided, vision of rights? My bastardized Herzberg theory.
The needs of the many outweigh the needs of the few.
If you’re a fan of Herzberg’s motivator-hygiene theory, you’ll more readily see where this is heading. There is a difference between the deprivation of rights to which everyone is entitled, under the constitutional guarantees of due process and equal protection, and the demand for special treatment, perhaps best reflected in Orwell’s Animal Farm, that “all animals are equal, but some animals are more equal than others.”
A bastardization of Herzberg’s theory is that there are deprivations that take a person below the standard to which everyone is entitled. An example (and just an example, nothing more) would be a law that denied a black person the right to vote based on race, whether directly or through proxies. That would be an unconstitutional deprivation. But once that deprivation is removed, it becomes a neutral factor. The black person gets to vote like everybody else, but he’s not assured his candidate will win. He’s just one of the many people who vote.
Am I shamelessly pumping my own theory at the expense of Greenhouse’s simplistic “all or nothing” view? You bet. At a time when “rights” are made of whole cloth, invented by every ideologue whose feelings compel them to emote in favor of whatever flavor of empathy is trending on social media that day, it is critical to view the hysterics’ complaints in a rational paradigm that protects everyone, and distinguishes “rights” from “wants.”
Bork was wrong. Simon was wrong. Greenhouse is wrong. As for Gorsuch, he may not be your preferred cup of tea, and you may not forgive the Senate’s improper treatment, but his qualifications are undeniable. Greenhouse knows this, even if she can’t bring herself to be completely honest about it.