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To the Abyss and Over: Court battle to set new lows for political discourse Jews would do well to avoid

July 7, 2005 By:
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Sometimes, you just have to marvel at the American legal system. It's far from perfect, but the ability of American jurisprudence to closely follow the election and polls results is something that citizens of other countries must marvel at.

Take, for example, the dueling decisions issued last week by the U.S. Supreme Court about the display of the Ten Commandments on government property. In one case, the court ruled 5-4 that such a display was illegal in Kentucky. But simultaneously, it ruled by the same 5-4 margin that another such display was legal.

In this instance, the perplexing result was made possible by Justice Stephen Breyer, who voted against the Commandments in Kentucky but for them in Texas. There were some reasonable distinctions to be made between the two cases, but the arguments he put forward for supporting the right to erect such a public monument in Texas on historical grounds was flatly contradicted by the language of the Kentucky ruling which he also supported.

Breyer's stance was intellectually indefensible. Yet in the view of many, if not most Americans, it was entirely reasonable, if not completely admirable. The truth is that most of us are uncomfortable with too much religion in the public square, but also are made queasy by the possibility of one in which religion would be largely banned.

And if that means we have to balance our view of exactly how high the mythical "wall" of separation between religion and state on a platform as thin as a dime, so be it.

For all of their common-sensical nature, Breyer's opinions seemed to reflect the age-old technique of putting one's finger up into the wind rather than a scholarly channeling of the great minds of the past. And it was for just this same sort of legal vision informed by the political polls as much as the founders that marked Justice Sandra Day O'Connor.
All-Out War
But O'Connor's retirement and the impending battle over the confirmation of whomever President Bush decides to nominate for the post is pointing us toward a very different train of thought.

Given the experience of the past several months, in which the confirmation of Bush's nominees for lower federal courts threatened to bring the entire Congress to a grinding halt, there is no reason to expect that the far larger stakes involved in the composition of the high court will lead to anything less than all-out political war.

For all of the pious rhetoric being thrown about by both sides about their hopes for a candidate for the court who will unite the country, that's about as likely now as the Christian Coalition and the American Civil Liberties Union voting to merge.

The idea of a Bush court nominee who won't trigger liberal accusations of extremism is virtually inconceivable. So, too, is the prospect that conservative groups won't try to Mau-Mau their leftist opponents in this skirmish. Bipartisan politics is as dead as the dodo.

The question is: Can anyone or any group avoid being sucked into this abyss of partisan wrangling? American Jews provide an interesting example of why the chances for that are slim.

In the past, most mainstream Jewish groups, while undeniably liberal, still managed to stay out of bruising partisan dust-ups like this one. In the case of defeated court nominee Robert Bork, whose incisive yet clearly conservative views on the Constitution were unacceptable to the liberal Jewish mainstream, most of those who spoke for the Jews still managed to hold their tongues when it came to his confirmation.

But will the same organizations whose brief is defense of Jewish interests find the courage to stay out of the looming conflagration?

Jewish political-action groups, such as the Reform movement's Religious Action Center, are working hard to maneuver their more centrist cousins in the American Jewish Committee and the Anti-Defamation League into a position where they, too, will rally against whomever Bush chooses. Pro-choice hard-liners such as the National Council of Jewish Women are doing the same.

Defense of Liberty?
The battle cry heard on this point is that stopping Bush from adding a conservative to the court isn't merely politics as usual, but the defense of religious liberty.

Ironically, the much-praised centrist O'Connor had helped swing the legal pendulum back from the left to help change the landscape of church-state law in the last two decades. She opposed religious displays in many cases, but still supported the right of parents to choose religious schools for their kids. But Jewish groups like the RAC and the NCJW are now speaking about a strengthened conservative majority as a lever by which the Christian right will destroy the separation of church and state entirely.

Will such scare talk work?

Probably. Conservatives and liberals in this country may not listen to each other much, but their increasingly vituperative assaults on each others bona fides do heighten the sense of terror each feels about the other.

In the case of the Jews, despite the ongoing war against Israel and its connection to America's war against fundamentalist Islam, liberal Jews still see conservative Christians (who largely favor Israel with at least as much fervor as the Jews) as their real enemy at home.

Ironically, those same conservative Christians feel every bit as embattled. They see the left's willingness to go to the mat to keep religious conservatives off the bench as sign of an impending culturkampf, in which believers will find themselves excluded from public life.

That may strike liberals as absurd, but it is no more ludicrous than the talk commonly heard on the left that the religious right is an "authoritarian" movement whose aim is nothing less than the imposition of a theocracy.

It will take genuine leadership on the part of a Jewish community that often seems bereft of real leaders to prevent itself from being dragged into this fight on such terms.

Though many of us will have strong opinions about the identity of the next justice, making it a Jewish issue would be a stupendous error. Our liberty is not at risk, but our ability to use our influence on other issues may be.

It is one thing to disagree with conservative Christians about domestic issues. But if the bulk of American groups follow the left in its headlong dive into this political armageddon, the price may be far higher than we know.

Far better for us to listen to the wisdom of the compromisers who seek, like the illogical Justice Breyer, to see both sides in this turbulent democracy as worthy of respect.

Jonathan S. Tobin is reachable via e-mail at: jtobin@jewishexponent.com.

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