January 13, 2006
Emanations and Penumbras from the Alito HearingsBy Bookworm
The Alito confirmation hearings have produced their iconic image of a loving wife dissolving into tears after hours of hearing her husband insinuated to be a racist, sexist troglodyte, and then finally defended by a decent man, Senator Lindsey Graham. Beyond marking the dead end of the 'Borking' strategy there are certain emanations and penumbras which, when they are fully absorbed, will further discredit the cause of Samuel Alito's tormentors.
The Left's response to the emotional pain Mrs. Alito experienced hearing her husband relentlessly and groundlessly attacked utterly contradicts the cherished Leftist doctrine, enforced on campus and in courts, that there is some kind of right never to be offended. No Democrat on the Judiciary Committee even managed any kind of apology.
The internet—powered Angry Left once again occuppied the vanguard, leading the Democrats with its enthusiasm, fundraising, and what passes for ideas. Those charmers who appear at the wildly popular DailyKos, had this to say about Mrs. Alito's travails:
There's more where that came from, of course, but it can't be good for the psyche to wallow in that kind of hatred.
Aside from being crude, this rank insensitivity to Mrs. Alito's feelings is at odds with the Left's increasing habit of interpreting the First Amendment to contain within it an unusual caveat: 'Congress shall make no law . . . abridging the freedom of speech, unless that speech hurts someone's feelings.'
This feelings—based censorship is most obvious at American colleges and universities. FIRE (the Foundation for Individual Rights in Education) recently highlighted a 'spare everyone's feelings' episode at Stetson University:
Stetson's dalliance with 'feel good' censorship is not unique. None of us are strangers to news stories about campus speech codes that blatantly violate the First Amendment, all in the name of keeping everybody happy:
Finally, the University of North Dakota defined as harassment anything that intentionally produces 'psychological discomfort, embarrassment, or ridicule' (a category of no small scope).
Liberals' concerns for young people's fragile sensibilities don't just begin at college. In November 2005, high school students and their parents made news for announcing that they were bravely exercising their unexceptional legal right to take their names off the list that high schools supply to military recruiters. (You really have to admire the media when it makes a cause celebre, not of people engaging in civil disobedience, but of people just doing what the law allows. What next? A cover story on people who dare to stop their cars at Stop signs?)
I find it hard to comprehend parents so terrified of our volunteer American military that they are afraid their children might be harmed even by seeing a recruiter on campus. I find it even harder to comprehend one of the reasons some students gave for their stand against military recruiting:
There you have it: Some students might be uncomfortable if their government asked them (not ordered them, not coerced them, not forced them at gunpoint) to join their own nation's military. I am, of course, delighted that these delicate flowers are steering clear of the military, since I don't see them being an asset to our forces. Nevertheless, I'm horrified that mere discomfort at the sight of an American soldier is offered as sufficient justification to ban our forces meeting with students attending federally—funded American schools.
Adults are also being protected in droves from anything that might infringe on their delicate sensibilities. The most obvious example is the annual December cycle of stories about various townships that, in an effort to protect atheists, Jews, Muslims, Kwanzaans, Hindus, Zoroastrians, Wiccans, Devil—worshippers, and Festivus celebrants, have banned any mention of Christmas from the civic arena. In 2005, the loudest noise on this front came in Boston, where the city attempted to call the Christmas tree a 'holiday tree.' Boston took this step despite the fact that even the least astute observer knows that Christmas is the only December celebration that has a decorated tree as an integral part of the secular side of the celebration.
Adult women also need to be protected from... um... something. Employers must create an environment that is sufficiently free from sexual harassment to protect a hypothetical 'reasonable woman' from feeling uncomfortable. [Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991); see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998)]. This standard, when the Ninth Circuit first announced it, was hailed as a huge step forward insofar as it meant that employers, striving to protect themselves from sexual harassment suits, did not have to guard against the 'idiosyncratic concerns of the rare hyper—sensitive employee.' [Ellison, 924 F.2d at 879]. No matter how brightly you paint it, though, it's still a standard that revolves around feelings, rather than around some objective measure. Indeed, even at the moment it created this standard, the Ninth Circuit retained the wisdom to recognize its inherent flaws:
Living as we do, in a sexually charged age, where Britney and Madonna are groping each other in public, it doesn't take a genius to realize that a sexual harassment standard based upon a hypothetical person's feelings, and having absolutely nothing to do with someone's actions or intent, is no way to run a company.
Surely this nurturing of everyone's sensibilities cannot be what the Founding Fathers envisioned when they insisted that the government stand aside so as to ensure the free flow of ideas. The Founding Father's scheme, which they saw as essential to national health, requires a vigorous marketplace of ideas. And this same vigorous marketplace requires that people living in such a healthy society develop little calluses on their emotions, so that Mrs. Levy can hear a 'Merry Christmas' without needing a valium; so that Joe College can be sneered at without calling his psychiatrist; so that ordinary American high school children won't be rendered incapacitated by fear if they merely see an American uniform; and so that women, both on the streets and in the workplace, can survive the occasional indignity of a 'well—intentioned compliment.'
I disagree strongly at a Constitutional and logical level with the feel good censorship emanating from the Left. I find it even more distasteful now that liberals have shown just how hollow these bleeding heart limitations on free speech really are.
Those on the Left side of the spectrum who reacted so cavalierly to Mrs. Alito's experience at the hands of Democratic Senators demonstrate that there is not one element of either consistency or sincerity in what they demand of the rest of us. This harsh conclusion will settle in as time passes and the public makes sense of the iconic spectacle on view this past week in the Hart Senate Office Building's grand hearing room.
Bookworm publishes the website Bookworm Room and lives as a crypto—conservative in one of the bluest communities on earth.