process arguments
The Dobbs v. Jackson Women’s Health Organization decision is has its roots in 2016, but we can learn some important lessons – but not about law, or Justices, but about how to better play the game liberals seems to be losing both rhetorically and in practice.
First – the 2016 incident I’m referring to isn’t the election of Donald J. Trump. It was the theft of a Supreme Court seat. In short – the Republicans, lead by Senate Majority Leader Mitch McConnel refused to consider putting President Obama’s nominee up to a vote. Let me be clear – they didn’t reject him (which would have been fine), they merely didn’t put him up to a vote.
What went wrong? Democrats played by the rules and were denied a fair process, and as a result they “lost” the Supreme Court because they did not play dirty when their time came. And why did Democrats not play dirty? I believe one reason is because the Democrats believe that the Republicans’ actions were a sign of the system working. Much like how a corporation avoiding taxes on some obscure technicality is the system “working”. Democrats believe it’s wrong, but within the constraints of the existing legal framework it can’t be prevented, just shamed. And this is why the Democrats lost the Supreme Court seat in 2016, because they cared more about respecting norms and the process than achieving their policy goals.
Ian Danskin of Innuendo Studios has a good framework for how this allegiance to norms and process is justified and works. Democrats believe that if the system is good, if the rules are followed, that good and bad ideas can be held by those across the aisle; and through the magic of Democracy the best option will be reached. Ian calls this “Values-Neutral Governance” – and I equate it to how I view the Free Market™. I think it’s okay that something like the KFC Double Down exists, because if it isn’t successful KFC will take if off the market. For the most part: good things succeed, bad things fail. It allows you to care less about what the inputs are, because it’s the sacred process that is worth defending.
In this vein, Democrats (read: Politicians, not Twitter pundits) generally value things like compromise, bipartisanship, and decorum. When the Party complains about how the system doesn’t work for the most vulnerable among us (racial justice, healthcare) they don’t rally around calls to overthrow the system. They aim to change the system through the existing means of governance. This takes the form of mottos like “defund the police” which implies a cooperation between legislators and their constituent needs. Or Medicare for All (which politicians generally don’t agree with anyways…), which doesn’t say burn Anthem, BCBS, etc… to the ground – but allow Americans to use Medicare if they so choose. These are changes within the system because Democrats believe that Democracy, the system they support, can produce positive outcomes. But these ideas (compromise, bipartisanship, decorum) are not positions, they’re not beliefs, they’re means to an end. And it’s the ends that control the way we live our lives. We can not lose sight of the ends – Republicans sure don’t.
So to bring this back to the 2016 Supreme Court fight – the Democrats valued the moral high ground, the process, doing what was right and the spirit / letter of the law over accomplishing their very clear and well-founded beliefs. Putting a liberal justice on the court protects many rights Democrats felt were (rightly so) under threat. That policy belief was sacrificed for the moral high ground.
Democrats retaining the high ground while Republicans capture the Supreme Court
One more example – to hammer this home. Take these two stories about gay marriage. Some of you might remember back in 2015 that Kentucky County Clerk Kim Davis refused to issue same-sex marriage licenses. She simply refused to follow the law. That was the wrong thing to do. A similar case happened in San Francisco in 2004, a judge went against state law and allowed for hundreds of gay couples to get married. That judge broke the law. That was the right thing to do.
Did both people act in a way that was not consistent with the laws of the land? Yes. Both violated the process. But one did so to uphold justice and fairness and bring us closer to a more perfect union. That is a value question – that is what we should focus on.
Now you may see where I’m going with this – do not get sucked into the process debate with respect to the coming wave of Roe disagreements. We do not know who leaked it, we do not know their motives. That is not the point. The point is, that as a result of a decades-long push to repeal a women’s right to choose – a minority of this country is enacting their version of Leviticus into law. They are making our Country less safe. That’s wrong.
So next time you see a tweet like this:
Ignore it. If you extend the frame of “blame” long enough someone else is always at fault. Pro-lifers broke the rules of engagement when they prevented a sitting President from a fair consideration of his nominee. But that’s not the point.
Or this,
Ignore it. It’s not a matter of passing new laws, the Constitution already protects it. We don’t keep writing laws to protect speech – it’s already protected. This is a repeal of 50+ years of case precedent. But that’s not the point.
Or this,
Ignore it. There’s a ton of doubt as to why this was leaked. He does not get claim he knows. But that’s not the point.
Or this,
Ignore it. He’s deflecting and hiding behind a process point. He’s not saying anything controversial – of course people don’t want violence! But that’s not the point.
Remember that your anger, your disagreement is with their views on a women’s right to choose. That’s what we are discussing here.
The danger with engaging in a process argument is that you might end up agreeing with that point. Take the leak that Mr. Shapiro brought up. If he makes an argument about leaking the draft, it might spiral and become a discussion about whether or now we should allow Government documents to be leaked at all. And to be honest – I might agree with whatever take he’s arrived at. So now I’ve given him (and any audience who might be listening) the sense that he’s made a point that (i) is good and proves he’s smart, and (ii) supports the larger argument. Neither of which are true. Whether I think that documents should or should not be leaked has nothing, and I mean nothing, to do with my views on a woman’s right to choose. But if you fall for the bait, if you engage with the process argument, you’re setting yourself up for failure.
And you know why conservatives do this? Because on some level they know Democrats care about the process. They know we love a good Jon Stewart “Fox New Hypocrisy” dunk, but they also know it doesn’t accomplish much more than the congratulatory back-patting that Twitter rewards with likes and retweets. They know we’ll take solace in achieving the moral high ground and sneer at them. We’ll tell ourselves that we’re on the right side of history and hope that over the long arc, things will correct. But those are all moral victories (not hollow, mind you), and they don’t change reality. They don’t change the fact that there is an incredibly high likelihood that women in more than 20 states will lose access to vital healthcare resources in the next three months.
Don’t fall for process arguments.
Note: Let me be clear – I think process is important. For all its shortfalls I do think The System™ has the power to accomplish great things. When all sides are playing within the agreed upon rules it’s great – but too often elected Republicans act outside of the rules and norms and it’s difficult to play a game when not everyone agrees how much hotels cost or if Free Parking yields any money. But I want people to feel empowered to ignore these pointless process arguments that seek to skirt the necessary discussion around the major issue – a women’s right to choose.