First, a pro-life strategy of compromise—rather than principle—has failed to convince the public or the courts. This offers the opportunity to refocus our efforts on the ultimate goal of the pro-life movement. Second, Republican judicial nominations have failed to overturn unconstitutional pro-abortion precedents and have even contributed to them. This offers the opportunity to eschew blind partisanship and to create constructive social tension that prompts political change. And third, our constitutional system has failed to constrain the judiciary. This offers the opportunity for lesser magistrates to resist unjust edicts.
(source: SCOTUS and Abortion: Three Failures and Opportunities)
Now, if you expect that I’m cheered to see that stated so clearly, you are quite right. Obviously, I think this effort is all to the good (especially that last one, which needs a lot more clear and cogent expression, these days).
I want to add one qualification, though. I think it is important that we not treat “didn’t work” as “couldn’t have worked” or “might not ever work.” I mean simply that, while we must necessarily make judgments based on our best possible understanding of our situation, we should not discourage others or prevent ourselves from simultaneously attempting other things.
Honesty requires us to simply admit that we regard some principles–partisan consistency, usual procedure, typical courtesy, even legal niceties and fair play–as useful and generally good, but dispensable when matters of the first importance such as the slaughter of the unborn are clearly not being solved in those manners. But honesty does not require us to say that such things are bad ideas. They are “good if you can get it,” and not treating the slaughter of the innocent as a human right is “if you don’t have this, you can’t have anything else.”
It really is that simple. We always plan the next battle, and we never agree that any of the transient alliances we may make along the way have any power to bind us where matters of true importance are at play. We recognize that gamesmanship and euphemism have their place, but we also recognize that when the innocent are being killed for profit with the protection and approbation of what we euphemistically call “the law,” the appropriate rhetoric is not that of the cricket pitch but that of the battlefield.
It cannot be otherwise.
And while we plan and think that way, we also back whatever improves the situation–tentatively, and without ever offering the slightest pretense that we intend to stop there. We insist that any honest person can “at least” support whatever is already in play, because that is reality. Any honest person can, and should. And we will insist that again, the next time, too.
So my qualification is only this: let us no more make a false principle of adherence to the top-line principle “alone” than of adherence to the lesser and more transient principles, but let us use all and every means without dissimulation or hesitation.
This is an excellent distillation. Especially “eschew blind partisanship and to create constructive social tension that prompts political change.” Alas, I fear the movement lacks the wisdom even to understand what is being asked of it. That they would even meet with Donald Trump shows the depth of their folly. What was he going to say that could possibly have made it a good idea to support him?
Robert Bork warned almost 30 years ago that the problem was structural and could not be solved by nominating better judges. For Congress and the president, the founders reinforced ethics with structural constraints that incorporated the self-interest of the people concerned, but with judges, the strength of their professional ethic seemed to make this unnecessary. Alas, in the long run the temptation of power (hence the title of Bork’s book) proved too great for human frailty. Some kind of constitutional revision, or an equally disruptive exercise of never-used constitutional options (such as Congress’ power to define the court’s jurisdiction) seems to be the only answer at this point. A sad conclusion for those of us who prefer to constrain power by ethics.