Where Left Is Right / The Old Site

The NY Times's David Brooks is a media flashpoint for some lefties -- he drives them crazy -- but I confess that I myself almost never read him; his columns just aren't, well, interesting. (The nuclear just-change-the-channel option, I guess.)

Today, though, I saw that his current column appeared beneath the provocative headline "Mr. Bush, Pick a Genius."

Why "provocative"?

First of all, and I know I'm guilty of the worst sort of stereotyping here, it's just unseemly to link the words "Bush" and "genius" in the same sentence -- at least without negating one of them.

And, of course, there's the irony inherent in the column from the outset:

Mr. President, they must think you're head of programming at CBS. Some people are telling you to name a Hispanic as your first Supreme Court nominee. Others say, Pick a woman. Harry Reid says, Pick someone who's not too controversial. Arlen Specter says, Look outside the judiciary for a fresh face.

All of which is preface to Brooks's weighing in with his own choice. His principal criterion, he says, is that the nominee should be "a philosophical powerhouse... someone capable of writing the sort of bold and meaty opinions that will shift the frame of debate and shake up law students for generations."

Whoa! you might think. Let's hear more about this philosophical powerhouse! Here's how Brooks sums him up:

Michael McConnell, who is often mentioned as a possible Supreme Court nominee, has already influenced American life through sheer force of intellect. First as a professor and now as a judge, McConnell has outargued those who would wall off religion from public life. He's a case study of the sort of forceful advocate of ideas you have a chance to leave the country as your legacy.

He goes on (my emphasis added):

McConnell (whom I have never met) is an honest, judicious scholar. When writing about church and state matters, he begins with the frank admission that religion is a problem in a democracy. Religious people feel a loyalty to God and to the state, and sometimes those loyalties conflict.

So he understands why people from Rousseau and Jefferson on down have believed there should be a wall of separation between church and state.

The problem with the Separationist view, he has argued in essays and briefs, is that it's not practical. As government grows and becomes more involved in health, charity, education and culture issues, it begins pushing religion out of those spheres. The Separationist doctrine leads inevitably to discrimination against religion. The state ends up punishing people who are exercising a constitutional right.

Brooks is right in a sense; around social issues, there exists a sort of natural vacuum of authority -- moral authority, requiring a society to do the right thing. Government (in the form of the laws of the land, given that we're speaking of the judiciary) can fill the vacuum, or religion, or a mixture of the two.

However, he fails to follow his own argument to its logical conclusion. Reverse the subject and object of his summary of the "problem": "As religion grows and becomes more involved in health, charity, education and culture issues, it begins pushing government out of those spheres." Maybe Brooks (and McConnell, for that matter) don't have a problem with this formulation, but I certainly do, and I bet I'd be joined by a lot of other citizens uncomfortable with even a "somewhat theocratic" state.

Speaking of McConnell's intention to exempt religious institutions from laws such as "anti-discrimination statutes, the Fair Labor Standards Act, and state sales and use taxes," People For the American Way notes (emphasis theirs):

The special rights and preferential treatment that [McConnell] would give to religious organizations under such laws are so extreme that his views have been unanimously rejected by the Supreme Court in a number of cases. He has criticized numerous cases on religion by the Supreme Court and other federal courts as wrongly decided, including precedents that protect the rights of religious minorities.

For instance, McConnell has been openly critical (nearly contemptuous) of the Supreme Court's decision in Bob Jones University v. United States. This was the celebrated case which the Supremes considered in 1983; its central question was, "Does an educational institution which denies admission to applicants on the grounds of miscegenation qualify for tax-exempt status?" BJU argued yes, of course; as their administration and faculty interpreted the Bible, they said, this was entirely reasonable behavior: Denying them tax-exempt status would be, gosh, it would be denying them the freedom to practice their religion!

According to People for the American Way, here's how McConnell reacted to the Court's overwhelming decision against BJU:

More than a decade after the widely accepted ruling in Bob Jones, however, McConnell criticized it for failing to allow the university’s religious claims to trump civil rights protections. In a 1997 article, McConnell specifically included the Court’s decision to allow the government to “revoke tax-exempt status for fundamentalist schools that forbid interracial dating” as one of several “egregious examples” of the Court’s failure to “intervene to protect religious freedom from the heavy hand of government.”... Several years earlier, McConnell had similarly written that the “racial doctrines of a Bob Jones University” should have been “tolerated,” even though he admitted they were “abhorrent,” because they were “church teachings.”

(Rehnquist was the only dissenter in the decision against BJU. And even he dissented on fairly narrow grounds -- that if you read the statute literally, well, all kinds of otherwise objectionable institutional behavior should be all right, shouldn't it?, so therefore we must decide in favor of the literal interpretation. IANAL, but just as a human being I think this comes close to disqualifying the Chief Justice from membership in a liberal democracy -- like the US literally is.)

So Brooks claims, anyhow, that this Dark Ages view of the church-vs-state debate qualifies McConnell as an intellectual powerhouse. Which speaks volumes about DB's own gravitas, hmm? Think I'll return now to my "Don't bother with Brooks" default setting.

P.S. Don't kid yourself that McConnell might be any more suitable -- or any more of an intellectual powerhouse, for that matter -- on grounds other than the one I dealt with above. (Brooks himself doesn't address any of these other gounds.) For more, see People for the American Way's "Report in Opposition" (from which some of the information above was obtained). Specifically, this was written to object to McC's 2002 nomination to a lifetime term on the 10th Circuit Court of Appeals, but the objections apply here as well. For a surprising contrarian argument from the left in favor of McConnell's nomination to the Supreme Court -- boiling down, essentially, to "He's the best we can hope for" -- see this post, plus comments, on Daily Kos.

Update, 2:32pm: Just read an interesting profile of McConnell at the law.com site. Jeez, the guy certainly sounds... unpredictable?