What really jumps out at you upon watching or reading about the Justice Sunday II sermon-o-ganza in Nashville yesterday is the contrast between the carefully process-oriented framing of the event–all about the separation of power, and checks and balances, and maintaining legislative prerogatives, and so on, bark bark, woof woof–and the underlying extremism of what the speakers actually were talking about.Sure, one theme of the event was the hoary pretense that somehow people of faith (or more accurately, of conservative faiths) are being persecuted for speaking their minds on political issues, which is pretty hilarious given the presence of the all-powerful Majority Leader of the House of Representatives, and the event’s object of promoting the judicial appointees of the President of the United States in the Senate controlled by that president’s party. There are a few of us who think the religious leaders participating in Justice Sunday II are dangerously shirking their spiritual duties by committing their flocks to a seamy alliance with Mammon through today’s Republican Party, but I don’t know anybody who denies their First Amendment right to sell their religious birthright for a mess of political pottage.But aside from all the paranoiac (and very un-Christ-like) whining, the big underlying message from Nashville was that reshaping the Supreme Court is necessary to stop the alleged baby-killing, sodomizing, and paganizing that characterizes contemporary America. And there is zero, zero doubt that each and every one of the speakers at Justice Sunday II would completely reverse themselves on every issue related to the Constitution, activist judges, and all the other stuff they blathered about, if the shoe was on the other foot and the judiciary was promoting their own ideology.Suppose, as a thought experiment, that a future Supreme Court embraced the implicit interpretation of the Equal Protection Clause embedded in the Human Life Amendment (still supported in the last Republican platform): that unborn children are endowed with all the rights and privileges of citizenship. Was there a single speaker in Nashville who would not hail such a decision as vindication of a Higher Law that binds all people and all times? I think not.In all their talk about legislative and democratic prereogatives, and the horrific arrogance of unelected judges, the Justice Sunday crowd is painfully reminiscent of the southern segregations who relied for many decades on Supreme Court decisions like Plessy v. Ferguson (the infamous “separate but equal” validation of Jim Crow), and then suddenly re-discovered a populist hostility to the federal judiciary the moment the constitutional winds started blowing in a different direction.It’s true that the Left as well as the Right has flip-flopped on this subject in the course of American history; reducing the power of the judiciary was a staple of the People’s Party and of the Progressive Movement back when judges interpreted the Constitution as prohibiting any and all legislation regulating private property rights.I don’t accuse today’s Cultural Right of a unique political heresy, but I do accuse them of a great and notable streak of dishonesty. They don’t give a damn about any of the constitutional and procedural issues they talked about in Nashville; they care about a particular policy outcome. They want to criminalize abortion, criminalize homosexual behavior, and sanction public displays of particular religious traditions. They will pursue those policies through any means available, and they ought to be pushed to the wall to admit it.
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By Ed Kilgore
Some of the contradictions in Republican talking points on election law and voting rights are becoming clear to me, so I wrote about it at New York:
During the intense controversy raised by Georgia’s new election law, which included a negative reaction from Major League Baseball and a number of corporations, many defenders of the law have played a game of whataboutism. What about voting laws in Colorado, the state to which the MLB’s all-star game has been shifted? What about liberal New York? A lot of these comparisons have been factually challenged, or have zeroed in on one benign feature of the Georgia law while ignoring others. But it does raise a pretty important question: What is the posture nationally of the GOP or the conservative movement on the right to vote and its limits?
Not long ago you might have said that Republicans and conservatives were firmly committed to the view that rules governing voting and elections —even federal elections — were purely within the purview of state and local policy-makers. But that was before Donald Trump spent four years disparaging the decisions made by liberal and conservative jurisdictions on voting procedures whenever they contradicted his often-erratic but always forcefully expressed views. If, for example, voting by mail was as inherently pernicious as Trump said it was, almost daily from the spring through the autumn of 2020, allowing states to permit it was a Bad Thing, right? That simply added to the complaints made by Trump after the 2016 elections that California’s alleged openness to voting by noncitizens cost him a popular vote win over Hillary Clinton, and the widespread Republican whining after 2018 that the same jurisdiction had counted out Republican congressional candidates (whining that somehow subsided when Republicans did better in the exact same districts following the exact same rules in 2020).And that was before Team Trump and his many Republican enablers spent the weeks and months after November 3, 2020, shrieking about state and local election procedures around the country, culminating in efforts to get the U.S. Supreme Court to overrule state court interpretations of state election laws. Indeed, since Trump, his congressional Republican backers, and the Capitol riot mob were trying to block the certification of state election results by Congress on January 6, you could say that a major segment of the GOP wanted the federal government to impose its will on the states with respect to voting and elections.
And if the prevailing conservative idea is that decision-makers closest to the people should determine voting and election rules, then it’s hard to explain the provisions in the Georgia law (and in pending legislation in Texas) that preempt local government prerogatives decisively.
So what doctrine of voting rights does the GOP favor, other than whatever is necessary to produce Republican election victories? That’s hard to say.
Yes, at the Heritage Foundation you will find experts who more or less think everything other than in-person voting on Election Day should be banned everywhere. And now and then you will get someone like Kevin Williamson who will articulate the provocative old-school conservative case for restricting the franchise to “better” voters, which was pretty much the ostensible case for the poll taxes and literacy tests of the Jim Crow South. Unfortunately, snooty contrarianism isn’t a particularly helpful guide to the development of voting laws, and most Republicans (other than those caught in a gaffe) are unlikely to agree out loud with the Williamson proposition.
Until quite recently, most Republicans agreed that the jurisdictions that had for so many years discriminated against the voting rights of minorities deserved extra federal scrutiny and some additional hoops to jump through before changing their rules. In 2006, George W. Bush signed a 25-year extension of the Voting Rights Act that did just that, after it passed the Senate unanimously and the House with scattered opposition. Then a conservative majority of the U.S. Supreme Court struck down a key feature of the VRA, and now it’s almost exclusively Democrats (via the John Lewis Voting Rights Act) who want to restore it. Where are Republicans on that idea? With the states and localities, or just with the states and localities where federal intervention in voting and election practices doesn’t inconvenience Republicans?
Whatever you think of Democratic attitudes toward voting and elections, at least they can answer such questions coherently. They have united to an amazing extent around highly detailed legislation (the House and Senate versions of the For the People Act and the aforementioned John Lewis Act) that generally expands voting rights and sets clear federal standards for procedures in and surrounding federal elections. The Republican response to these proposals has been almost universally negative. But it’s unclear what, if anything, they would propose of their own accord.
If the implicit GOP position on voting and elections is simply that such rules are part of the give and take of partisan politics and that both sides are free to play fast and loose with the facts and get what advantages they can, then I can understand why they are loathe to make it explicit. But in that case, people who care about voting rights one way or the other should simply choose sides and have it out.