I am a little slow today, and just got around to the Opinion Journal, where John Fund and Rush Limbaugh tag-team the Mier’s nomination. First off, Fund drops a bombshell regarding what peope were told regarding Miers and Roe:
Mr. Dobson says he spoke with Mr. Rove on Sunday, Oct. 2, the day before President Bush publicly announced the nomination. Mr. Rove assured Mr. Dobson that Ms. Miers was an evangelical Christian and a strict constructionist, and said that Justice Hecht, a longtime friend of Ms. Miers who had helped her join an evangelical church in 1979, could provide background on her. Later that day, a personal friend of Mr. Dobson’s in Texas called him and suggested he speak with Judge Kinkeade, who has been a friend of Ms. Miers’s for decades.
Mr. Dobson says he was surprised the next day to learn that Justice Hecht and Judge Kinkeade were joining the Arlington Group call. He was asked to introduce the two of them, which he considered awkward given that he had never spoken with Justice Hecht and only once to Judge Kinkeade. According to the notes of the call, Mr. Dobson introduced them by saying, “Karl Rove suggested that we talk with these gentlemen because they can confirm specific reasons why Harriet Miers might be a better candidate than some of us think.”
What followed, according to the notes, was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, “Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?”
“Absolutely,” said Judge Kinkeade.
“I agree with that,” said Justice Hecht. “I concur.”
Shortly thereafter, according to the notes, Mr. Dobson apologized and said he had to leave the discussion: “That’s all I need to know and I will get off and make some calls.” (When asked about his comments in the notes I have, Mr. Dobson confirmed some of them and said it was “very possible” he made the others. He said he did not specifically recall the comments of the two judges on Roe v. Wade.)
This lends more and more credence to Richard Bennett’s theory:
Bush doesn’t care about abortion, and neither do the bibliocons. They understand that even if the Supreme Court was to strike down Roe, the states would legalize it anyway, and they’d lose their moral authority. It’s one thing to say that five men in black robes are imposing their personal views on you, and quite another to be faced with the certain knowledge that the people hold values that define you as outside the mainstream. So it’s best if Roe stays intact and the conservative movement has the issue to complain about.
The real problem that bibliocons have with the court showed up earlier this year in the great shouting match over the corpse of Terri Schiavo. All along the bibliocons and paleocons had been telling us they were fed-up with activist judges getting involved in state and local issues where they didn’t belong, but suddenly they were all over the courts for refusing to be activist with respect to the family and the State of Florida. So it became clear that the right wants the mirror image of what the left wants, an activist bench that is willing to impose its personal values and beliefs on the rest of us.
Looking for judges who have that sort of orientation is a hard search, because the conservative team that the right’s been grooming since Roe (Luttig, McConnell, Olsen, et. al.) is all about judicial restraint, and none of them can be relied upon to jump into the breech on Schiavo-type cases and do the right thing by the right. So Bush had to ignore the conservative farm team and draft a close personal friend with the proper religious credentials and the requisite lack of judicial hang-ups.
Sounds about right. You can also read Limbaugh’s piece, whch is little more than cheerleading, but still anti-nomination, for what that is worth.
ppGaz
That “became clear” to many people years ago. It would be rather a hard point to miss. It’s a reflection on the press and punditry … and now, these days, the blahsphere … that talking and typing heads have been so slow to see and react to this obvious truth. There is no integrity in the speech coming from the right, and never has been. It’s all Ends Justifies Means behavior, all of it.
Geoduck
I agree that the Republicans greatly enjoy having RvW around to keep the shock troops in a permanent froth, but “the states would legalize it”? No. Some, a few of the hard-core blue states, would. Many would just sit on the fence and many others would ban it immediately.
Shygetz
Geoduck–Sitting on the fence (which I assume means doing nothing) would be the same as legalizing it. Only a few of the states would outright ban it. Most would pass something that looked a lot like Roe v Wade, which is incredibly popular as a compromise position. Some would be more permissive, some a bit less so, but very few would outlaw it outright.
Frank
Shygetz- You are ignoreing the fact that Congress would immediately introduce legislation to ban abortion nationwide. Overturning Roe won’t send abortion back to the states, that ship has sailed.
Davebo
Frank
Someone in congress probably would produce such a bill. But it would have even less chance of passage than Social Security reform.
DougJ
It would be time to fish or cut bait for the Rovians. That’s why Roe v. Wade will not be overturned. No way in hell are the Rovians stupid enough to do that. If Roe v. Wade were overturned the Republican party would become a minority party overnight. Their choices would be: introduce unpopular legislation banning all abortion or alienate their base forever.
There are some people who think there are issues other than abortion that are important politically. They are wrong. If Roe goes, the Republican coalition goes with it.
Ancient Purple
I am personally looking forward to Sen. Specter getting his pound of flesh from Rev. Wease… er… Dobson.
I should stock up on popcorn now.
Horshu
If RvW is overturned, and it goes state-by-state, the next battle is attempting to prevent out-of-state residents from having abortion in legal states. And you can also count on seeing more of these organized out-of-state multi-petition drives that pay people to gather signatures in an attempt to ban abortion in every state. But the key thing is that because some states would not ban it, the best bet to denying it to others is to prevent them from having one in a state other than their state of residence.
demimondian
I’d offer ten bucks as a bet that a Constituional amendment guaranteeing privacy, and particular abortion rights, will be passed by both houses of Congress within six months of the first national election after Roe is reversed. (Yes, I used “will”, not “would”. I expect Roe to be reversed.)
Mr Furious
If I follow this thought further, by actually overturning Roe (and pursuing the illegalization of abortion) the Republicans would not only lose by pissing off the moderates, they’d give the religious base no reason to show up and vote anymore. Squeezed from both ends—they are finished.
Makes me start to wonder if it’s worth it…
DougJ
Mr. Furious, it would truly be killing the goose that laid the golden egg to overturn Roe.
Steve
If we couldn’t even get the ERA passed in this country, I have to think that the “Privacy Amendment” is the stuff of fantasy.
demimondian
Why do you think that the theocrats are so scared of any state formally passing a law recognizing gay marriage? The whole “court mandated legislation of morality” falls apart in a heap if something is passed by the legislature!
Remember: abortion was becoming legal in the United States, state by state, before Roe. Bring back that fight, and thirty years of confidence that the argument over abortion really doesn’t mean anything evaporates over night. Dobson and Robertson really don’t want that, and they’re smart enough to know it.
demimondian
I didn’t say that the privacy amendment would pass the states. I said it would pass the Congress.
Harry Atkinson
The con string-pullers would miss the abortion issue should it resolve their way. They’ve had this chain through the nose of the fundies for decades, and it has alwyas been a tried and true method of getting out the vote.
And then there is the problem with the backlash from the vast majority of people who want things to stay the way they are. Take away a right as important as this one and the Republicans will have their worst election since 1930.
h0mi
The fight would sway from state to state; some states will ban it in most cases and others will restrict abortion in the 2nd trimester but keep 1st trimester abortions legal.
If the proposed amendment is serious about privacy & isn’t just simply a code word for “abortion rights”, this proposed amendment could pass, especially if some bad high provile events occur; I’m thinking identity theft and the like.
Kimmitt
Hey, there’s still fag-hating.
Jim Allen
Re: “If we couldn’t even get the ERA passed in this country, I have to think that the “Privacy Amendment” is the stuff of fantasy.”
Fifty-something-year-old white guys didn’t have to worry about the ERA, but would have to worry about their privacy. I don’t believe it’s quite as fantastic as you might think.
ppGaz
Yyyyesssss there is! And the bare truth here is that fag-hating/baiting and “pro life” are mostly two sides of the same coin: Disapproval of other peoples’ sexual behavior.
The “pro life” movement was never about life. It was always about people having sex. That is, people we don’t like having sex we don’t approve of.
Steve
Look, I am as pro-privacy as the next guy, but there is no way this “Privacy Amendment” will be seen as anything other than a referendum on the abortion issue, PARTICULARLY if it gets proposed right after Roe gets reversed!
Andrew J. Lazarus
Demi, I’ll take that bet, and I’ll go double or nothing that if the GOP still controls both houses of Congress within six months of overturning Roe, they will have passed a bill criminalizing crossing state lines for the purpose of procuring an abortion. The House has recently passed a law doing this for minors seeking to avoid parental notification rules. The vote was not close.
dantes
Re Bennett’s theory: Congress passed a law permitting merits-based review of Schiavo-like matters in the federal courts. When the Schiavos went to federal court, they were booted on grounds independent of the merits. Railing at the judiciary for not exercising the jurisdiction conferred by Act of Congress is not hypocritical judicial activism. In fact, refusing to exercise the jurisdiction was activism in precisely the same sense that Roe was activism — the courts, for better or worse, ignored the expressed will of legislatures on both matters. Now, had the bibliocons shouted at the federal courts for refusing to intervene in the absence of an Act of Congress, that would be hypocritical. Bennett’s ahistorical charicature notwithstanding, that is not what happened.
As for a federal law banning abortion, I’m agnostic, but I’d surely love to hear someone spin that commerce clause arguments.
Sojourner
Nonsense. The constitution trumps the legislature.
demimondian
OK, Andrew — Cole, you’re going to have to hold for us here, dude.
Remember the full terms of the bet I offered, though:
I’m expecting the ‘pubs to get the boot when _Roe_ goes.
Still want the bet?
Steve
This is completely false. The Schiavos were denied a stay on the grounds that they had failed to demonstrate a likelihood of success on the MERITS. Read the decision.
demimondian
Not really. The courts ruled that the case had been thoroughly litigated, and that the Shiavos brought no new evidence. Assuming that the case had been correctly decided previously, each court in turn ruled that it would not grant a new injuction on the basis of the evidence it had already heard.
The Schiavos had already had their chance to demonstrate their likelihood of success on the merits, and they had failed. The courts were ordered to review the case. Each court did, and refused to act.
The Irascible Richard Bennett
We’re up to re-writing history here:
No, the Congress passed a law giving the federal courts jurisdiction to hear arguments on the Schiavo case and that case alone. The courts examined the record and asked of the parties had anything new to offer. As nothing new was forthcoming, the federal courts affirmed the findings of the state courts. DeLay and company were hoping for something different: a stay based on the time needed for discovery and all that, but the courts psyched him out and went with what was actually in the law as opposed to what DeLay pretended was in the law (a whole new trial.)
But this is the problem: Roe took a matter of some importance away from the states and federalized it. Bibliocons said that was wrong. But Schiavo took a matter of little importance away from a state and federalized it, but Bibliocons said that was right. This is outcome-based reasoning.
A principled conservative judge opposes both examples of the usurpation of states’ power by the federal government, but a Washington-loving party hack doesn’t. That’s where Miers comes in, as an outcome-oriented hack unshackled by any known principles of constitutional construction.
Steve
I have no desire to go back and reargue the entire Schiavo issue. The courts followed their obligations under the new law to the letter, and no one except a grandstanding politician has ever claimed otherwise. Apparently you believe what grandstanding politicians tell you.
You seem to have no understanding of what the issues before the federal courts actually were. The Schiavos simply failed to present a colorable federal claim, and were denied a stay on that basis.
Afterwards, the grandstanding politicians tried to claim that the law required the courts to grant a stay, or required them to hold a brand-new trial on the issues litigated in state court. But those issues related to a state-law claim, not a federal claim. The issue before the federal court was whether the state court handled the issues in accordance with due process and other constitutional requirements.
If Congress had intended that the courts should have to grant a stay, they could have said so in the bill they passed (although it’s unclear if that would have been constitutional). Such a bill wouldn’t have been passed by unanimous consent, however.
John S.
Examples?
ppGaz
Wow, I’ll bet you were shocked — shocked! — to realize that there was gambling at Rick’s Cafe in Casablanca, too.
Andrew J. Lazarus
Demi: I accept your bet, if you accept mine. Mine is contingent upon the GOP being in control of Congress for the six months following the (hypothetical) judicial decision. If this is not the case, then my bet is canceled. Your bet, as I understand it, is not restricted with respect to who controls Congress. Therefore, if you are correct and there is a big swing to the left, my bet is canceled but yours is live. You can see, in some sense I am offering you very attractive odds.
A good analysis of hypocrisy in judicial nominations is here.
demimondian
I’m not sure who you’re arguing with here. You’re saying exactly what both Richard Bennett (on your political right) and I (on your political left) both said: the courts zoomed the Congress by doing exactly what they were supposed to do, and no more.
demimondian
Andrew — OK, it’s a bet. I’ll send Cole an email (from one of my real identities; the address I use here is no longer valid).
The Irascible Richard Bennett
Abortion is already legal in something like 10 states thanks to laws that were already on the books at the time of Roe or laws that were passed as insurance afterwards. California and New York were the first to legalize it, and the California law was signed by none other than Gov. Ronald Reagan.
If Roe is overturned, the federal predicate for being involved in abortion goes away, so Congress would have no jurisdiction to get involved in the issue except as they do today with respect to military hospitals and the like.
The great scam in the abortion debate is the idea that men are against it and women for it; the reality is that nobody wants abortion to stay legal as much as fertile men do, because the alternative is 18 years of child support.
Krista
Don’t forget the other great scam, Richard – that only unmarried teenage sluts ever find themselves in the position of needing to consider an abortion. I’m sure there’s no way to do any kind of study on it, due to the sensitive nature of the topic, but I’d looooove to see how many married women over the age of 25 have had abortions in the last 10 years. I think the numbers would be a lot higher than we think, and I think it would change the dynamics of the debate somewhat.
Harry Atkinson
Almost totally off topic: The new Gallup numbers are in and they show Bush’s approval numbers at their lowest level ever.
http://www.usatoday.com/news/washington/2005-10-17-bushapproval_x.htm#
ray
Man, have I accidently gotten to the KOS blog??? You guys are nuts!
Harry: You do realize, don’t you, that Bush won’t be running for re-election in 2008? And also that approval polls taken at this time in the election cycle are meaningless?
Re: Roe v Wade: Virtually all knowledgable legal folks now agree that RvW was wrongly decided and made up out of thin air. Do you also know that when it is finally reversed, that the abortion issue will merely cease being a federal issue and will devolve back to the individual states?
And that poll show that a large majority think that abortions are much too frequent these days? And that a HUGE majority thinks that partial-birth abortion is murder and should be banned outright?
You guys are in la-la land if you think that anything at the national government level will change when RvW is overturned. There’ll be no “huge backlash” sweeping Republicans out of office, nor any of you laughable Amendments proposed.
demimondian
The statistics are actually available. The abortion rate among married women is significantly lower than the abortion rate among unmarried women. Donohue and Levitt (2001 — yes, *that* Donovan and Levitt) report:
Now, those are rates, rather than absolute numbers — but given that the overwhelming number of pregnancies in the US are in older women, the rates among teenagers are staggering compared to those among married women in their later twneties.
demimondian
Been drinking again, Ray?
ppGaz
How can that be, when our Constitution clearly provides protection for the unborn. Doesn’t it?
The Irascible Richard Bennett
Teenaged sluts have mommies, and not all of them want a lot of extra mouths to feed around the trailer.
demimondian
In Bush’s paradise, The FE-momma doesn’t get a trailer.
You’re doing a heckuva job, Drownie!
CadillaqJaq
Dantes posts: “As for a federal law banning abortion, I’m agnostic, but I’d surely love to hear someone spin that commerce clause arguments.”
Me too. I’m still curious how RvW applied to Interstate Commerce… because pregnant females operated vehicles on Interstate Highways? Or crossed state lines?
demimondian
If a state had the ability to regulate abortion, then the availability of embryonic stem cells in that state would surely be higher than in surrounding states, which would undermine the Federal government’s ability to regulate the price of stem cells in the interstate market.
(Hey, it’s a guess!)
Tractarian
Roe v. Wade didn’t deal with interstate commerce, nor did it need to. The Supreme Court has jurisdiction over all matters involving the federal Constitution, and the issue at Roe was whether the 1st, 4th, 5th, 9th, and 14th Amendments prohibit states from outlawing abortion.
IMO, the theory that the GOP doesn’t really want to see Roe v. Wade overturned is hogwash. Of course they do. Not because they are ideologically pure or anything – rather, because a reversal of Roe would be only the tip of the iceberg for abortion as a federal poltical issue.
There will be a push to pass federal laws banning movement of women across state lines to obtain abortions, and banning it outright. If these fail for lack of constitutionality, there will be a push for a Constitutional amendment banning it. And with Roe out of the way, there will of course be state-by-state campaigns to outlaw it.
Democrats who think reversal of Roe will end abortion as a wedge issue are sorely mistaken. In my view, their best course of action is to disarm the issue by proposing a Privacy Amendment to the constitution that codifies a general right to privacy while incorporating a compromise on abortion:
1) First trimester abortions guaranteed by right.
2) Second trimester abortions regulated by the states.
3) Third trimester abortions banned.
demimondian
You know, I don’t believe in much politically, but I genuinely think you misread the American public if you believe this. Sam Brownback would be unelectable in Kansas if his vote on abortion meant anything — and don’t think that the women of Kansas don’t know it.
Gay-baiting is relatively harmless to a politician, and “welfare mom” bashing doesn’t do much to hurt electibility anywhere. But women make up 52% of the voting population. The GOP would not lose all of the women’s vote, but it would lose almost half of the 45% it holds. That’s enough to throw a lot of bums out…fast.
DougJ
Check out the Colbert report, everybody.
Steve S
Oh, I’m sure you are right… This is what the Republicans will try to do.
But they’ll fail, when their voted out of office.
People really fail to grasp just how much Americans do not like other people telling them what to do. Few people vote for Republicans on abortion issues… they vote because they’re against welfare and taxation. They are able to ignore abortion, because it’s not going anywhere. In 20 years of whining, the pro-lifers have accomplished nothing and most people recognize that.
The interesting dynamic is that should Roe be overturned, and abortion be outlawed… We either end up with a lot of women and doctors in jail, or we end up with a lot of unwanted babies.
The evangelical christians may be haters, but they are most certainly also Bleeding Hearts. Should we end up with a lot of unwanted babies, they will begin to demand expanded welfare programs.
Steve
Your second sentence certainly proved that you are not one of the “knowledgable legal folks” you mentioned in your first sentence. Not that the first sentence was true, anyway; many constitutional scholars agree that Roe v. Wade was poorly reasoned but that hardly means they agree that the result was incorrect.
Just to make it clear: Overturning Roe v. Wade would in no way, shape, or form mean that the federal government has no power to pass laws regarding abortion. Congress has already been legislating in this area (e.g. the Partial Birth Abortion Ban Act of 2003), and it would take a judicial revolution far more sweeping than the alteration of a couple Roe votes for the Supreme Court to hold that the Commerce Clause no longer permits federal regulation of abortion.
What this means in practice is that Congress could do whatever it likes in a post-Roe world, and that states would be free to legislate on abortion to the extent Congress left the issue open for them to do so.
Paddy O'Shea
Loved Ray’s comments about polls being meaningless and that they have no relevance when he says they don’t. And he does very wisely point out that bush is not running in 2008, something that many find comfort in all over this troubled world.
His remark about Kos confused me, though. Does Ray actually think that is the only place where Shrub’s disastrous Gallup results are being discussed?
Unfortunately for the GOP, however, there is this thing called the midterm elections in 2006. And the Babbling Dunce in the White House is rapidly becoming quite an albatross about their pink fleshy necks.
Krista
So that means that the other two-thirds are performed on adults. Interesting. It just seems that there’s a prevalent attitude out there that the only women who need abortions are the ones who are young and stupid, or young and skanky. There’s very little mention of the woman whose husband leaves her with very little financial support, who already has kids to feed, and who finds out that her husband left her a going-away present: pregnancy.
All of this notwithstanding, whether you support the right to choose, or whether you think that life begins at conception, I just wish that people could shift the focus to the idea of preventing unwanted pregnancies in the first place, by means of effective, affordable birth control. If all of these anti-abortion groups spent their money on starting up a program that provides free IUD’s to low-to-mid income women who want them, my god…that would prevent more abortions than all of the protests in the last 10 years, I’m certain.
demimondian
I agree with you in philosophy, although I don’t necessarily agree with you in mechanism. There’s enough evidence that IUD usage reduces fertility through uterine or cervical scarring that I think it clear that promoting IUDs would constitute involuntary (and largely unintentional) mass sterilization. Bad picture. At this point, the progestin-homologue implants would be both safer (short and long term) and more effective. A program promoting them would work: there’s a great deal of CDC evidence that their availability, more than anything else, is responsible for the drop in abortions in teenagers in the last few years.
The anti-woman crowd doesn’t really want a reduction in abortions, though. It wants a reduction in sex, and birth control doesn’t cause a reduction in sex.
CaseyL
Actually, there are new IUDs coming out that are supposed to avoid the infection/scarring pitfalls of the old ones.
I’m not quite sure how, but if I were still in the market for BC I’d find out, because I had an IUD in my early twenties and adored it with all of my heart. It’s there, you never have to worry about taking a pill every day or putting something in or taking something out, or interrupting the action to put something in, out, or on :)
Kimmitt
IUDs are abortifacent forms of birth control; they are inimical to pro-life stands. Any form of birth control which prevents implantation of a fertilized egg is going to be just as bad as an abortion to any pro-lifer who doesn’t happen to be Mormon.
(The Mormons have theological reasons why they believe that life begins at implantation, rather than conception, which puts them slightly at odds with the rest of the pro-life movement.)
Krista
Kimmit – Good to know. I was only using the IUD as an example, as it’s a form of birth control that people would not have to remember to take every day, but it could be that the implant would be a better solution in this instance, if it prevents fertilization in the first place. Mechanics aside, it seems like Demimondian’s right. There are probably many pro-lifers who are also pro-contraception, but their voices are drowned out by those who would have every married woman stay home, popping out as many sprogs as she can until her uterus gives out. Utter stupidity…I guess a lot of them really do care about life, but only between conception and birth. After that, if you’re starving and poorly clothed because your folks can’t afford so many kids…well…tough shit. Jesus suffered, so everybody else should too.
I tell you, if I had the money, I’d start up a program just like the one I mentioned, and would laugh in James Dobson’s face when the abortion rates plummet.
RA
There has been no, nada, zilch verification about this Fund story. In fact the people he tried to talk to said they didn’t mention Roe. Never trust the MSM until it has been confirmed by a reliable source.