Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Thursday, August 11, 2005

With Friends Like This . . .

It saddens me that abject lies and misinformation are promulgated in my name, and in the name of progressives and moderate Democrats everywhere. And -- although it pains me to say so -- "abject lies and misinformation" is the most temperate description I can offer of NARAL's new advert offering these reckless and demonstrably absurd insinuations about Judge Roberts' position in a case concerning whether old legislation designed to enable prosecution of the KKK could be applied to those who used violent means against abortion clinics and doctors. The Times reports:

"Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber," the narrator's voice says. The spot concludes by urging viewers to: "Call your senators. Tell them to oppose John Roberts. America can't afford a justice whose ideology leads him to excuse violence against other Americans."

Factcheck, on which we all relied during the presidential campaign when it served us to do so and on whom we ought to rely until they are shown to be ideologically imbalanced or otherwise wrong, opines that "'the ad is false' and 'uses the classic tactic of guilt by association.'"

There are two very important points. Again, as in the anti-Roe v. Wade comments isolated from a brief Roberts wrote as an SG, this misses the obvious point that Roberts had a client and a cherry-picked position waiting for him, and only the option of how to advise the administration and how, precisely, to formulate his argument before the Supremes. Secondly, his position in the abortion clinic case was reasonable, ethical, and defensible. His position suggested nothing more than an effort to limit the reach of a narrowly-tailored law to the conduct at which it originally was aimed.

There are plenty of laws, as there always have been, of which violent abortion protesters can run afoul. Arguing that one obscure law doesn't apply hardly puts Roberts in the way of the door to the clinic hurling Molotov cocktails or waving pictures of aborted fetuses.

This is precisely the sort of tactic that makes the left look like a bunch of raving lunatics with little connection to reality, and it is precisely that perception that the right uses against us. NARAL, do us all a favor, and if you must protest this nominee at all, don't adopt the disingenuous, underhanded, and creepy double-speak tactics of the adversaries you excoriate for precisely those methods. You'll win nothing now, lose us battles in the future, and make us all look bad.

Please please please -- can we please maintain the high road here. I'm not saying there aren't reasons to oppose Roberts. I'm just saying that we cannot afford to resort to lies and propaganda. The cost to our credibility is simply too high when we're probably a year away from a far more dangerous nomination and fight.

UPDATE: As promised in the comment thread, I intend to write at some length about Bray and what I think Roberts' role in arguing that case connotes. In the meantime, I want to point out that it took all of five pages of the Bray opinion to confirm for me that two of the points raised in the above blockquoted factcheck commentary are absolutely true:

1) as Deputy Solicitor General, Roberts defended the Administration's view of a law, passed during the Reconstruction era and not materially changed in the interim, that comported with prior Supreme Court precedent more or less down the line. That's what SG's do. They promote views of the law. And only in the most obtuse sense can we realistically construe his position as supporting a party or parties. The SG is a sort of administration ombudsman, who has the unique privilege of arguing a view of federal law without directly representing any party in interest. That a given argument might serve one party or another disproportionately is inevitable, or else the view of the law promulgated wouldn't be much of a view. After all, it's disputes that come to the Court, and if you're inclination is to call something a tie then there's really no point in being there to begin with. That's simply not the same as supporting violent protestors or bombers; the case there at issue involved neither violence nor bombings, but merely a question whether federal law applies to a particular group of people running obstructionist protests of abortion clinics.

2) "America can't afford a justice whose ideology leads him to excuse violence against other Americans." Um, okay, I'm on board with that one. But absolutely nothing, absolutely nothing, about Roberts or his conduct in or outside of his role in Bray suggests his ideology (just for starters), or that his ideology (whatever it is) "excuses violence against other Americans." On the reading most favorable to NARAL's position, all one can conclude from Bray is that he thought patently violent activities like violent protests (not protected by the First Amendment) or firebombing abortion clinics (even only a very few mainstream righties approach approving this) are better managed by resort to state law rather than constitutional equal protection jurisprudence. He "excused" no one; he merely argued, again on behalf of an Administration qua client, that parties injured by such conduct did not have recourse to a particular subsection of federal law.

Occam's razor, folks. Let's keep it simple, and keep our voices down, if we want to have a real discussion about this stuff.

More on Bray to follow.


Anonymous binky said...

I'm curious, have you watched the ad?

You should check out some more of the feminist sites on this. The NYT/Kos side seems to be accepting the right's criticisms.

There are rebuttals here, here and here.

To say the least, the uproar has been very enlightening about how much distance there is between women and men on the left. There is a whole lot of "you just don't get it do you" going on out there.

12:39 PM  
Blogger Moon said...

Binky, all I need to see to write precisely what I wrote is this:

Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber . . . .

Unless the New York Times has suddenly stopped fact checking, that's enough to provoke the comment I've already made. This isn't a male / female issue, at least not for me. It's a question of law, and I won't have anyone claiming the mantle of the left misrepresenting simple legal situations and arguments to promote an agenda when, in order to do so, they must blatantly lie -- and that's what we're talking about here, a pure prevarication -- about something that is easily understood on its own terms. That's part of why my comments didn't rely heavily on the argument that Roberts wasn't representing his own position but that of the administration at the time. That's beside the point.

Bring me a legitimate legal argument that is somehow antithetical to women -- hell, the anti-Roe footnote from the brief that was flogged a couple of weeks ago was a much more interesting thing on its terms than this -- and then I'll entertain arguments pro and con that are ideological in nature.

But I won't skip to ideology when someone's getting the facts wrong. Naral not only is inferring things at a degree or two of remove about Roberts based on workproduct, they're also simply mis-leading people about what the argument was about, and his position thereupon.

Raving lunatics on street corners might have something interesting to say, but if they rave rather than say something interesting they have no claim on my attention.

1:02 PM  
Anonymous binky said...

"Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber"

So Roberts didn't file a brief?
The brief didn't support the Operation Rescue position?
Or Bray wasn't a bomber?

1:11 PM  
Blogger Moon said...

okay. i calmed down (i'm having an awful day). looked at the bitch phd link. and i'm going to the source. before i say another word, i'll at least familiarize myself generally with the ruling in bray. but i will say this, first: when the united states is not a party to a given case, then it's at least somewhat misleading to talk about the SG siding with one side or the other. the Court welcomes the SG's comments on pretty much any case, especially constitutional ones, but it's far more useful, and more accurate, to construe the SG as venturing an opinion on the direction of the law. i think it's inappropriate to think of them as siding with one party or another simply because they offer an opinion on the law that may favor one party or another. the distinction is subtle, but real, and is typical of the sort of thing layjournalists and the commentariat consistently miss or disregard. i'm not saying it takes a lawyer; indeed, i think many lawyers would have trouble explaining the SG's role, especially as it has been evolving in a more partisan direction in the past 20 years. i'm saying it takes someone who troubles herself to learn the basic relationships of the bodies at issue. again, though, on the narrow issue here, i'll shut up until i've read bray. look out for a follow-up post or comment.

1:12 PM  
Anonymous b said...

"Unless the New York Times has suddenly stopped fact checking, that's enough to provoke the comment I've already made."

You should read the BitchPh.D. link I put in. It claims that Fact Check's fact checker erred.

1:12 PM  
Anonymous binky said...

Oops. We simul-posted.

Sorry you are having a bad day.

1:13 PM  
Anonymous binky said...

And I know you are going to write more, so I am going to leave it be, but I was truly pissed about the factcheck article comparing Operation Rescue to the Civil Rights movement. Lawyers Guns and Money was too.

2:16 PM  
Blogger Moon said...

Fair enough, but in a point of order, when I say correctly in the context of case analysis, I'm speaking professionally based on my understanding of legal doctrine, not morally based on my sense of how things ought to be. Furthermore, I'm not even agreeing or disagreeing about Scalia's reading of the Constitution or statute at issue, although in the spirit of true judicial restraint, I'm highly conscious of the value of precedent, and precedent speaks pretty clearly to this one.

2:57 PM  

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