Thinking Clearly About Judges
Ender's video which featured the former Clinton supporter indirectly reminded me of the topic of judicial appointments and its effect on voters.
A common argument for McCain that has been used to shore up his support among the base is that he will appoint strict constructionist judges in the mold of Antonin Scalia while Obama will try to pack the court with far left ideologues. That, in and of itself, is a good enough reason to pull the lever for McCain, regardless of what views he may have on other issues. Indeed, a McCain presidency could finally be what overturns Roe v. Wade. Lets take a moment to dissect these arguments.
First, let us assume that McCain does win the presidency. Barring any sort of miracle at the polls, he will be facing a very hostile Democrat-controlled Senate which is currently projected 
) to hold about 56 seats (including Bernie Sanders and Joe Lieberman). Does anyone really believe that the Senate will confirm someone who the President purports to be the ideological equivalent to Antonin Scalia? The Democrats could afford up to 16 defections and still hold the line via a filibuster against any so-called "extremist" judge. As I like to say, "not bloody likely".
What works is in McCain's favor is that the judges most likely to retire are ones who are generally considered to be in the liberal bloc: John Paul Stevens (88) and Ruth Bader Ginsburg (75). At best McCain can hope to replace two liberals with two moderates. Even looking ahead to 2010, the Republicans will still be on defense in the Senate simply due to the shear number of Republican-held seats (19R vs 14D ). I highly doubt that Roe would be overturned given these facts.
Now let us assume that Obama is the winner. As previously mentioned, he will have a compliant Senate to do his bidding. In a filibuster scenario, pro-choice Republicans would probably defect, essentially giving him carte blanche to appoint anyone he wants. But recall that he's probably only going to be able to replace liberals with other liberals, so the overall ideology of the court will not likely change. Obviously Roe will be safe under Obama, but there isn't much he'd be able to change by replacing liberals with other liberals.
So to sum up, Obama can't do much more than hold the line on Roe unless there is an expected retirement or death among the conservative bloc, and McCain's hands will be tied by the Senate. So if you're a conservative looking to overturn Roe you're going to have to wait until 2012 when the Democrats have 24 Senate seats to defend and the President is up for re-election. In essence, judges are less important now than they will be in the future.
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Comments :
Good points
So basically you're saying the blackmail each party uses to coerce voters unhappy with their nominee -- ie, the threat of the other guy appointing Supreme Court Justices -- doesn't matter all that much right now.
Sounds like voters should feel more free to back third party candidates, then.
Let's hope that most liberal-leaning undecideds don't agree or else have other pressing issues that differentiate Obama from McCain!
(Also, I front-paged this, but of course you should feel free to do so yourself in future for pieces like this.)
Come, my friends. 'Tis not too late to seek a newer world -- Tennyson
Thanks again
I prefer to wait until a few people have voted for my diaries rather than immediately front page them (the rabble can decide what's on the front page), but your assistance is appreciated.
With respect to the diary, all I mean to say is that if you're holding your nose for someone because of judges, this isn't exactly the most important time to be doing it. That does imply a link toward voting for a minor candidate, but it doesn't have to be.
I never broke the law; I am the law! --
George W. BushJudge DreddI'm listening to...
You'd think this would be obvious
to Republicans by now, given how little actual groundwork has been laid towards overturning Roe. It's a wonderful stick-and-carrot for the evangelical voters, but the only real pro-life work has been attempted at the local level, with little or no support by the national party.
Saint, n. A dead sinner revised and edited. - Ambrose Bierce
What makes you think that? n/t
"A society that puts equality before freedom will have neither. A society that puts freedom before equality will get a high degree of both." ~ Milton Friedman
Well, there are two options for
overturning Roe: place all your eggs in the Supreme Court basket, or lay a legal groundwork that'll give you a better argument for judges on the fence to come over to the pro-life side. Actually, you need to do both - and if Republicans are doing nothing other than hoping to stack the SCOTUS, then they'll never pull it off. They are not stupid people - they know as well as anyone that the constant back-and-forth between Republican and Democratic presidents practically ensures that they won't have a majority long enough to place every judge.
And so, during a disastrous (on PR terms) 8 years for the Republican brand, watching the Democrats slowly creep back to majority status, what have they done to make overturning Roea real possibility? Can you think of any groundwork being laid anywhere, apart from the constant beating of the drum every 4 years when it's convenient for an election? I can't.
Interesting sidenote, to illustrate what I'm talking about: do you know why the California Supreme Court legalized same-sex marriage? If you read the opinion, it wasn't an issue of drastically overstepping boundaries - the legal reality is that pro-marriage advocates had been slowly building a legal framework for same-sex couples in the state, based on what was possible under the current reading of the state constitution. By the time the marriage case came to the court, even the lawyers in opposition had to recognize that the usual arguments against same-sex marriage - things like raising families, stable parental environment, etc. - had been effectively neutralized. They had no argument left, and the Court recognized that the state had already been giving de facto marriage rights.
Now, it's not easy to do that with an issue like abortion (you can't be de facto pregnant!), but if the argument hinges on the recognition of the fetus as an individual protected by certain rights, then the Republicans need to be trying to get those rights recognized/codified in ways that are legal and constitutional.
I don't want to see that, because I'm pro-choice. But it seems to me that the Republican party has been all surface in its commitment to overturning Roe, waving its perennial stick-and-carrot in front of eager voters.
Saint, n. A dead sinner revised and edited. - Ambrose Bierce
Well it requires both...
...we must have a case (Grassroots) to bring to the SCOTUS.
That is happening in a very real way right now in South Dakota
.
And one look at this list
should convince most anyone the movement is alive and kicking (No pun intended) and is happening everyday on both local and national levels.
"A society that puts equality before freedom will have neither. A society that puts freedom before equality will get a high degree of both." ~ Milton Friedman
Notice who's not on that list:
the Republican Party.
Again, I'm not saying there isn't a movement, I'm suggesting that the Republican Party only pays lip service to it, and has nothing real invested in overturning Roe. McCain thinks the South Dakota ban is too restrictive
, and other national figures and ostensibly pro-life Republicans have been less than supportive 
. It's a great rallying cry for bringing out voters, but the party has shown no real commitment to the pro-life agenda.
Which, ya know, is just fine by me.
Saint, n. A dead sinner revised and edited. - Ambrose Bierce
The Gaurdian UK? LOL!
Anyway, McCain supports it, he like many of us support exceptions for rape, incest, and the health of the mother, that's all.
As for Republicans, maybe this
will help you.
"A society that puts equality before freedom will have neither. A society that puts freedom before equality will get a high degree of both." ~ Milton Friedman
What's your problem with the Guardian?
Since the quote is directly from McCain, you can hardly make fun of the source. And if you do, you should at least learn to spell it.
The site you linked me to is some good, some nonsense. I loved this opening:
Oy. First, the writer needs a crash course in logic. He can start with this
.
A couple of the examples the author gives as consistent Republican support for building a legislative history are good: Laci and Conner’s Law, for example. Others are not so good. Embryonic stem cell research? Given that the bill nearly passed with a veto-proof majority, I wouldn't say that speaks volumes about the party's commitment to labeling embryos as human beings (notice that the author mentions Bush's veto, but not the 50 Republicans in the House who voted for the bill. Yay, cherrypicking!)
Then there's this sly bit of untruth:
Roberts opposes Roe? That's fascinating, since every comment he's made on Roe has been supportive of it. The one exception is a little weak
, considering its context. At best you can make an argument that he's been inconsistent on his stated attitudes towards Roe, but writing part of a brief that says you find it poorly argued, and then saying you respect it as established precedent, is hardly grounds for calling this "opposition", no?
My favorite part, though, was this little nugget:
No he couldn't. That's a clever way to make it seem like this list is longer than it looks, but that's the entire movement at the national level.
Wowsers, what a powerhouse! With the poor innocent blood of thousands of babies on the line, those Republicans sure are trying hard!
Saint, n. A dead sinner revised and edited. - Ambrose Bierce
The process of laying legal groundwork is a behind the scenes
process. There certainly has been legal arguements set forth for why Roe is bad law - actually I think even liberal scholars are embarrased by the law. The Justice department has argued for upholding the PBA ban. As far as Roe itself I don't think there's been a case that dealt directly with the possibility of overturning it since Casey. Even if there was what's the chance of getting people who voted agaisnt upholding the PBA ban to overturn Roe? Trying to change the composition of the court maybe a long shot, but if you look at who was on it, it seems to have been the only shot.
Well Roberts got confirmed by all the Repubs and half the Dems
Even with 56 Dems that's still 72 votes. Alito OTOH would have narrowly lost to confirmation in a 56 Member senate. So it seems we can probably expext McCain to pick someone between Roberts and Alito. Obama OTOH will pick young Ruth Bader Ginsburg types. Now, you're argue this means no damage done because you're replacing a liberal with a liberal, but the thing is you're replacing a 80yr old liberal with a 50 yr old liberal. I would say there's a pretty big difference from a 50 yr old RBG, and a 50 yr old Roberts - a big enough difference to vote for McCain.
It would matter how long you want to play this out
I suppose it depends on where you stand on Roe. I'm sure some people are going to be trying to fight this battle for the next 30 or 40 years. The way I see it, if it doesn't get overturned in the next few years, its not ever going to be overturned. I also happen to believe the notion that the Republicans will never get around to overturning Roe because it'd eliminate a huge part of their voting bloc. A good deal of Republicans can make the case that the Constitution doesn't mention abortion, so it must be a state issue under the 10th amendment. A good deal less can make the case that the Constitution completely forbids abortion or allows Congress to legislate it under Art. I, Sec. 8.
For what its worth, I actually happen to prefer abortion to be a state issue, but I'm not losing any sleep if it isn't.
I never broke the law; I am the law! --
George W. BushJudge DreddI'm listening to...
Not sure I agree
that overturning Roe is a soon-or-never thing. IMHO some of the opposition to abortions is driven by better medical technology enabling ever more premature babies to survive. I could see that as a factor in at least modifying Roe down the road.
Come, my friends. 'Tis not too late to seek a newer world -- Tennyson
Though I'm pro-choice,
I am indifferent to R v W being overturned because I know it would become an exploding cigar for conservatives and that pro-choice will win out in the end.
Most states will immediately make it legal at the state level and the rest will just battle it out and the pro-life stance will become a liability in those states and cost them dearly until they give up.
When parties stick adamantly to issues that are easy-to-see losers in real life, like the Pro-Life stance, I grin maliciously just DARING them to act on it.
As the Chinese proverbs goes:
"May you get what you wish for"
I think you overestimate the advantage pro-choicers have
The same states that elect pro-lifers now will be pro-life post Roe, and the same ones that are split will be split and the same that elect pro-choicers will be pro-choice. This means that the south and Midwestern states like Nebraska, Dakotas and Kansas will be pro-life. States like OH, and PA will be split, and the west and East coast will be as pro-choice as it is now. There's not going to be some landslide for pro-choicers.
I think the idea that there will be landslide one way or the
is based on " Everybody must think like me type thinking.
I disagree
I would end up like Prohibition....just on a state by state level.
It will become a political liability and empower pro-choice politicians.
Well that's certainly not the way it seem to shake out if you
look at the polls. A couple polls I saw showed 50% support a ban on abortion with the exception of rape and life. A couple of polls showed 50% for a ban with the added exception of health, but the next option on these polls was to be in favor of abortion even in the case of death or rape, so they could be in line with the polls showing 50% support for a more stringent ban. Point is the 50% of the county is in favor of putting serious restrictions on abortion, that doesn't hardly support a landslide number of people being pro-choice.
Wording matters
From what I've always seen, if you simply ask if abortion should be totally illegal apart from threats to the mother's life and rape, the majority say "no".
Besides, I always find the "exceptions" clauses to be laughable. If abortion is murder then it is murder. I don't see the logical consistency in making exceptions for certain cases like rape or incest. The pro-life argument goes onto shaky ground when it does this. If life starts at conception, then it starts at conception...PERIOD. There's no scale of worth in terms of life if the pro-life premise is to be solid.
Right
Life of the mother is a reasonable exception.
It *is* possible to make a logical case for permitting abortion in cases of rape (even granting the fetus is a person) under the argument that there is no legal obligation to donate your body to save a life (the so-called violinist
thought experiment). But in general one would expect a consistent pro-life position to prohibit abortion even in the case of rape.
Come, my friends. 'Tis not too late to seek a newer world -- Tennyson
I believe there's mitigating (hopefully that's the word I want)
circumstances. In rape the fact that the woman did not choose the child and the child may put an undue burden on the woman makes it more understandable that the woman would end the pregnancy. Morally I would still say abortion is wrong, but legally I would say the woman was put into an hard situation and therefore bears less responsibility in the situation.
I agree that argument can be made
I just think it's hard to argue against abortion in general on primarily moral grounds and then argue for an exception in the case of rape on primarily legal grounds.
(Not saying that's what you do, just speaking abstractly)
Of course there are legal rather than moral ways to frame the pro-life case, but the movement as a whole seems to prefer shock tactics designed to incite moral outrage. Understandable but perhaps counterproductive.
Come, my friends. 'Tis not too late to seek a newer world -- Tennyson
It's sort of like the insanity plea
The person killed by an insane person is no less valuabe than one killed by a sane one. Still we consider the circumstances of the insane person to party excuse his actions.
Well, here's the wording to one poll
"Which of these positions best represents your views about abortion? A woman should be able to get an abortion if she wants one in the first three months of pregnancy, no matter what the reason. Abortion should be legal ONLY in certain circumstances, such as when a woman's health is endangered or when the pregnancy results from rape or incest. Abortion should be illegal in all circumstances, even if the mother's life is in danger"
Forty percent are in favor of a ban except for rape, life, and health. 10% are for an absolute ban. Now, I suppose you could quibble with the word such as. But the point is, 50% would favor serious restrictions on abortion, even in the first trimester. That's not the pro-choice position. Therefore according to this poll there's no pro-choice super majority. I found four polls like that.
"Besides, I always find the "exceptions" clauses to be laughable. If abortion is murder then it is murder. I don't see the logical consistency in making exceptions for certain cases like rape or incest. The pro-life argument goes onto shaky ground when it does this. If life starts at conception, then it starts at conception...PERIOD. There's no scale of worth in terms of life if the pro-life premise is to be solid."
What you find laughable is irrelevant to the political reality.
Polls and Polls
I've seen them too. And maybe I am only seeing the wrong polls but the I always see the majority as pro-choice.
What you find laughable is irrelevant to the political reality.
Cop out from my point.
Another way to look at what would happen post Roe
is to look at Europe. I believe Europe has more conservative laws on abortion than we do. Now, since we live in a federalist system some states would be much more conservative than Europe, and others somewhat less.
Europe is also
more Catholic, no?
Come, my friends. 'Tis not too late to seek a newer world -- Tennyson
Except for GB of course
So I suppose they would be the best example of abortion law in the USA. I do believe they have more conservative abortion laws than the USA, allthough still what would be considered a pro-choice regime. Of course the USA is much less secular than Europe, so I imagine that work toward us being more pro-life - especially since were federalist you would see tougher laws in the bible belt.
I had no idea,
had to run to Wikipedia
for that one. Looks like abortion is legal prior to 24 weeks, which I think is roughly comparable to the US (edit: assuming that the physical/mental health of the mother requirement is not too difficult to meet). There's a poll quoted with these results:
Come, my friends. 'Tis not too late to seek a newer world -- Tennyson
I think with PBA you could do it past 24 weeks of course
that's been banned, but I think there's still another late term abortion proceduce that's used. I think these are third trimester abortions which put them at 27 weeks or past.
Well there are a lot of other issues
besides Roe that the Court decides. And the difference between a conservative and liberal justice can be seen on those issues too. Having an originalist court isn't just about abortion it's about conserving constitutional democracy, rather than being ruled on domestic issues by an educated liberal oligarchy.
RE:
"A good deal of Republicans can make the case that the Constitution doesn't mention abortion, so it must be a state issue under the 10th amendment. A good deal less can make the case that the Constitution completely forbids abortion or allows Congress to legislate it under Art. I, Sec. 8."
Allmost all of Republicans are arguing for making it a state issue or ammending the constitution to make it a federal - there's very few that argue it is currently a federal issue, and I believe really quite few that want to make it a federal issue.
Indeed
Which is why federal Republicans will either have to change their tune -- pro-life activists aren't going to rest until abortion is completely outlawed -- or start losing votes.
These activists aren't about to let an insignificant thing like the Constitution get in the way of saving (what they believe to be) lives.
I never broke the law; I am the law! --
George W. BushJudge DreddI'm listening to...
Stinerman, are you going to say that a infant in the...
...womb of it's mother has not inherited the "spark of life" and is somehow anything less than human?
"These activists aren't about to let an insignificant thing like the Constitution get in the way of saving (what they believe to be) lives."
It is you that talked about "group talk" and how that influences communal consciousness, and you too spoke about "introducing legislation early so that it eventually becomes part of the dialog and is therefore more acceptable".
Is this anything less than that? No. Of course not.
When two humans conceive a child - and a woman is pregnant - she is pregnant with a...human child!
To insinuate anything else is just irrational, nonsensical horsesh*t.
(The whole right or wrong aspect of abortion left aside.)
"A society that puts equality before freedom will have neither. A society that puts freedom before equality will get a high degree of both." ~ Milton Friedman
Indeed I am
Yes, a blastocyst is not a human and does not have the rights that a human should have. Neither does an embryo. Once we get into fetus territory we are talking about a human with some rights.
There is some threshold that is crossed somewhere that gives the "child" some rights. Most of this is in the realm of metaphysics so I have trouble saying exactly where that line is. Suffice it to say the line does exist.
Generally speaking, I support laws requiring legal abortion for the first and second trimesters. Third-trimester abortions should be illegal unless the patient can prove she had no reason to believe she was pregnant or some other such reason why she did not have an abortion earlier. I choose the third trimester mostly because there is good evidence that pain is not felt by the "child" before then. Much of my moral beliefs are based on the wrongness of the infliction of pain on a living thing. To that end, any 2nd and 3rd trimester abortions should be done in a way that causes the least amount of pain to the "child". This should include any number of drugs that would eliminate sensory perceptions of the "child".
Constitutionally, states should have the right to restrict abortions as they see fit.
I never broke the law; I am the law! --
George W. BushJudge DreddI'm listening to...
Just who are you calling "strict constructionist" judges?
You jest so well when you imply that Antonin Scalia is any such judge.
Thankfully, McCain won't get the opportunity to name any. This Administration has already tilted the balance in every Federal Dept they could. Now it's time for some progressive balance.
Not always, but a good deal of the time
Scalia tends to stray from his philosophy when he really doesn't like the underlying law (see Gonzales v. Raich for a prime example).
I'd say Thomas is a strict constructionist, but he goes out of his way in much the same manner.
I never broke the law; I am the law! --
George W. BushJudge DreddI'm listening to...
You surprise me sir...?
"A society that puts equality before freedom will have neither. A society that puts freedom before equality will get a high degree of both." ~ Milton Friedman
Don't be so....
Surprised
In our society, people are rewarded for pretending to be certain about things they're clearly not certain about. -- Sam Harris,
You've read me wrong
I mean that is the argument, not that I agree with it.
I tend to be a bit more conservative on judges as Brutus has pointed out, but while McCain might be better on judges (and guns for that matter) than Obama, that isn't enough of a reason to vote for him.
I never broke the law; I am the law! --
George W. BushJudge DreddI'm listening to...
Here's a little something from someone...
...who knew a little bit about the constitution and judges;
"A society that puts equality before freedom will have neither. A society that puts freedom before equality will get a high degree of both." ~ Milton Friedman
I agree to an extent
We should be impeaching more judges for obviously flawed decisions or perhaps appointing them for a set term rather than for life. I do have a problem with elected judges, so let us not go down that path.
If Congress is too afraid to assert itself, then we will get what we deserve.
I never broke the law; I am the law! --
George W. BushJudge DreddI'm listening to...