Roe v Wade

Packing the Court

Among all the victims of modern American society, perhaps language is the most critical. For without an accepted means of communicating, there is little to no hope that any other problems can be solved. Unfortunately, Americans have become careless, if not outright lazy, in their use of language. It is in this context that we need a correct definition and understanding of packing the court.

Within hours of Justice Ruth Bader Ginsburg’s death, President Trump and Senate Majority Leader Mitch McConnell stated they would fill her seat as soon as possible—before the election. In response many people have suggested that Democrats should add seats to the high court if they win both the Senate and the White House in the current election. That was met with hysterical cries. The Democrats want to pack the court!

Of course, the Constitution does not designate the number of seats on the Supreme Court. That is left for Congress to determine. Over the history of the United States the number has ranged from five to ten. The current configuration of nine was set in 1869.

It has been argued by some that there is a difference between packing the court and stacking the court. Under this distinction, adding seats to the Supreme Court would be “packing”, while loading the lower courts with right wing ideologues is “stacking.” The distinction is nominal, at best. Although it does allow for a comparison between stacking the court and stacking a deck of cards. An astute observer would recognize that both are cheating. More substantively, though, the terms packing and stacking are interchangeable. But what is packing?

Over the last three and a half years Mitch McConnell has directed the Trump Administration’s efforts to pack the federal bench, often with unqualified individuals who are chosen simply for being young ideologues who will do the bidding of the Republican Party for decades to come.

McConnell, of course, has done more than just pack the lower courts. First he blocked President Obama’s legitimate and moderate appointment of Merrick Garland to the Supreme Court. Secondly, McConnell and Trump moved with unparalleled rapidity to fill the seat left vacant by Ginsburg’s death. In fact, Trump was uncharacteristically honest in stating his reason. Looking back to 2000 for inspiration, he said he wanted the Supreme Court to decide the 2020 election regardless of the peoples’ vote.

What gets lost in the shuffle of accusations about Democrats packing the court is the reality that Trump is doing exactly what every other dictator does in an attempt to retain power. He is packing all federal courts. It is classic authoritarianism. You know. The what “can never happen here” but is actually happening here. It is only when the courts are packed with Trump appointees that he can take the next steps toward establishing an autocracy and dismantling the Constitution of the United States.

The issue regarding a new SCOTUS appointment is not judge Barrett’s qualifications. Unlike many of the judges Trump and McConnell secured for the lower courts, she is competent. The issue is the demise of democracy. It is neither extreme nor hyperbolic to declare that if a Republican dominated Supreme Court appoints Trump president, then American democracy is dead.

Another reason to fear Trump’s packing of the courts is the reality that the federal courts—all the way up to the Supreme Court—are becoming less and less representative of the American people. Indeed, they are simple out of touch with reality. From the Citizens United decision to the gutting of the Voting Rights Act, the American people are being dismissed from the democratic process. Three Trump appointed appeals judges sided with Texas governor Abbott’s decision to limit ballot drop off boxes to a total of one per county. Note that Harris County which includes the city of Houston has a population of more than 4 1/2 million people and covers a territory of 1,777 square miles.

What happens to America when we can no longer rely on the courts to guarantee the rights of all our people? Even before Trump's presidency, America began slipping into an oligarchy. With Trump we are headed straight to dictatorship.

I can appreciate a nominee in a senate hearing not answering questions about legislative issues that might come up before the Supreme Court. Many of Barrett’s predecessors have done the same. But for a moment set aside Roe v. Wade, set aside the Affordable Care Act. Instead of legislative issues, look no further than the Constitution, itself.

No, a president cannot issue an order saying the Constitution is null and void and declare himself president for life. Not unless Amy Coney Barrett is confirmed. She refused to defend the Constitution.

Yes. The president must accept the vote of the people and commit to a peaceful transfer of power. Unless Amy Coney Barrett is confirmed. She refused to defend the Constitution.

No. The president does not have the authority to unilaterally delay an election. Unless Amy Coney Barrett is confirmed. She refused to defend the Constitution.

No. Armed people cannot intimidate voters at the polls. Unless Amy Coney Barrett is confirmed. She refused to defend the Constitution. Maybe Amy Coney Barrett is not qualified after all.

The examples above demand that Amy Coney Barrett not be confirmed to the Supreme Court. If she is confirmed, during her oath of office she will swear to defend the Constitution of the United States. But her testimony in the senate hearing room suggests otherwise. One might conclude that either there are two Amy Coney Barretts or, like the president she seems to admire, there is only one Amy Coney Barrett who does not speak the truth.

If she is confirmed Trump and McConnell will have succeeded in packing the court. If she is confirmed the Democrats will have no choice but the expand the court. Not pack it. Expand and reform the court so that it is more representative of the American people.

Why Abortion Still Matters--and Why I Am Pro-Choice

Yesterday the Oklahoma Legislature passed another anti-abortion bill. This one attempts to end abortions by allowing felony charges to be brought against doctors who perform them and revocation of their licenses.

For more than forty years, America has wrestled with this issue. For more than thirty of those years I have been a Catholic priest committed to my church’s teachings in the abstract, while engaging a pastoral response for specific circumstances. I was satisfied with my position, comfortable in my conviction. Certain that no one wantonly desires an abortion, I was pro-life (in all its stages)
and pro-choice. But I have grown increasingly troubled with that balance as unforeseen consequences of the anti-abortion movement have taken hold.

Oklahoma State Senator Nathan Dahm, who authored the bill, attempted to present himself as a defender of rights and stated, “Those rights begin at conception.” That is a philosophical position that cannot be proved and one that is patently contrary to U.S. law as determined in Roe v Wade.

As I look backward, I observe that in typical American fashion we, as a society, have skirted honest debate regarding abortion—at least anything meaningful. There have been no discussions to explain to Senator Dahm why his position is philosophically (and religiously) untenable. For most of us our minds are made up and there is nothing to discuss. We prefer to sequester our thoughts and marshal our forces as if we are at war with one another.

During the 1990s, it was difficult to drive more than ten miles without seeing a bumper sticker righteously screaming “Abortion is Murder” (Forgive the mixed metaphor). The sticker was simple, if not simplistic, for if ever a slogan skewed the truth, that was the one. On one end of the reality spectrum it played into popular imagination. One could visualize the termination of a living fetus suddenly rendered dead by another’s hands. But it clouded vision on the other end of the spectrum—the birth of a child into poverty, disease and destitution with no societal attention or concern for its plight. That, too, is murder, though it is not so easy to envision. And it carries with it even greater social ills.

The myopically obsessive focus on abortion, including actions by the U.S. Catholic bishops, turned millions of people into one-issue voters, enabling many an otherwise incompetent person to be propelled to public office. For two generations one needed only state his or her opposition to abortion and election was all but assured. I guess as a priest I can’t help but call to mind the biblical adage “Whoever sows injustice will reap calamity” (Proverbs 22:8). As a result of these elections we are now reaping a whirlwind of calamity.

In many state legislatures, and even within Congress, Americans have elected representatives with no concept of a common good; legislators with no compassion for the poor or empathy for the infirm; no concern for the displaced or mercy for the alien. These are issues of great import in both the Old and New Testaments. “You shall not oppress an alien; you well know how it feels to be an alien; since you were once aliens yourselves in the land of Egypt” (Exodus 23:9). When the arrogant and self-righteous challenged Jesus about his association with sinners he responded, “Those who are well do not need a physician, but the sick do.” Then he concluded with the stinging indictment, “Go and learn the meaning of the words, ‘I desire mercy, not sacrifice’” (Matthew 9:12 &13).

This is the same Bible that right-wing elected officials claim is so dear to them and upon which most of them take their oaths. These legislators do not call out the best in us for there seems little that is Godly or biblical in them. They are driven by something else and in the process turn each of us into
someone else. We are increasingly becoming a self-centered and self-serving people, unconcerned about the burdens we place on others, whether pregnant women, immigrants or the poor. America has become a country misled not by the left, but by the right. Not by those who defend personal freedoms, but by those who take them away. But there may be hope.

After forty-plus years the truth about abortion might just be emerging into focus. The facts speak something very different from what we hear in state legislatures and the halls of congress. Abortion in the United States has actually been on the decline since 1997. In 2012 there were 486,837 less abortions than in 1997. At least part of that downturn can be attributed to easier access to contraceptives. Why, then, would anti-abortion legislators want to restrict that, too? There are a number of answers.

The first is that this is really about sex. In the 1960 film “Inherit the Wind,” modestly based on the 1925 Scopes trial, the prosecuting attorney is asked about the Biblical evaluation of sex. His response? “It is considered original sin.” That is a level of ignorance that can only be found in right wing circles, and it seems as though they have not come very far in ninety years.

There is also a second conclusion. Opposition to abortion, whether genuine or merely perceived, has been but an instrument for many to obtain power. And history has repeatedly demonstrated how difficult it is to relinquish that. From one state to the next, elected officials are not content merely to force women to bring their pregnancies to term. They also want to restrict access to contraceptives, forcing women to get pregnant in the first place. And knowing full well that the wealthy will always be able either to obtain abortions or avoid the need, these elected officials target minorities and the poor and they have quite successfully managed to malign and denigrate them—the very people God chose as his own; the people Jesus frequently chose to spend time with. There is a pattern here. The same legislatures that assiduously pass burdensome anti-abortion laws also seek to exclude millions from medical coverage and food subsidies. As has been noted by others, the anti-abortion movement is not pro-life. It is, at best, pro-birth.

Should we choose honesty in this discussion, the anti-abortion laws have another intent that is beyond the birth of a baby. It is to keep women poor and disenfranchised, to strip them of their freedom and opportunities for advancement in education, employment, status—essentially all aspects of life. The extreme anti-abortion laws being advocated in various states are misogynistic and ultimately a modern form of slavery. Women become property to be owned and controlled with the result that these laws contribute to the income inequality that is so central in our current election cycle.

Finally, the third conclusion is the most insidious of all. The conservative legislatures that were created by the anti-abortion movement have cannibalistically turned on the very people they are forcing into existence by stripping them of their right to vote. Lest anyone think this is a non-sequitur, it cannot be mere coincidence that the states enacting voter restriction laws are the same ones that elected their officials with the singular qualification that they opposed abortion.

Forty-three years after Roe v Wade I still believe that no one actually
wants an abortion. But I believe it is sometimes necessary and I am convinced that every woman should have the right to choose—informed by her beliefs, unencumbered by either church or state. As a priest I think, sadly, that the Catholic bishops were wrong to focus so narrowly on abortion and to encourage the election of officials whose social policies are so far removed from Gospel values.

Today I am no longer concerned about balance. I now nuance my position on a life continuum. I am pro-choice precisely because I am pro-life.