Saturday, October 22, 2005

Miers nomination: The implications for Roe?

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As the Miers Senate Confirmation Hearings draw nearer, and political pressure builds on the Administration, very little attention is being paid to the fact that Abortion law as we know it rests precariously in the balance. John Roberts replacing Chief Justice Rehnquist didn't really shift the internal dynamics of the court. The implications for Harriet Miers replacing Sandra Day O'Connor are much more dramatic.

So the looming specter of Roe vs. Wade being overturned becomes increasingly more tangible... thanks in large part to the White House emphasis placed upon Miers' Pro-Life/Evangelical beliefs. And yet, for all the speculation, are we really examining where the Supreme Court currently stands on the issue of Abortion? Are we even considering, with specificity, how things are likely to change?

Answers can be found in the 1992 case, PLANNED PARENTHOOD vs. CASEY.

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Planned Parenthood vs. Casey asked whether the state of Pennsylvania could require women who wanted an abortion to obtain informed consent, wait 24 hours, and, if they were minors, obtain parental consent, without violating their right to abortions. The rights of the state legislature to restrict abortions, and apply a "rational basis" for those restrictions, brought back into question the fundamental principles of the Roe vs. Wade ruling.

Roe vs. Wade was re-affirmed in the case 5-4 in three parts:
1) The right of the woman to choose to have an abortion before viability.
2) The State may restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman’s health.
3) The State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.


What does this all tell us about where we stand today?

Well, two of the four dissenting justices remain on the court: Justice Thomas, and Justice Scalia. Chief Justice Rehnquist stated in the dissenting opinion, joined by Thomas and Scalia: "We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases."

Rehnquist, of course has now been replaced by this guy...

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...who said: "Justices are like Umpires... I will remember it is my job to call balls and strikes, and not to pitch or bat."

The subtext to John Roberts' quote from his Senate Hearings is that he is an Originalist. He believes that the role of a judge is stick to the original text of the US constitution strictly, with as little, if no subjectivity. Originalists believe that nowhere is it specifically stated in the constitution that Abortion is a fundamental right, and that none of the principles that it articulates were ever originally intended to provide that right. Hence it is the responsibility of respective states to legislate on the issue, effectively meaning that Abortion can be criminalized.

Others, like myself, believe that the US Constitution is a "Living and breathing" constitution, growing and evolving through time in our interpretations, embodying principles that bear a different significance upon society as we change via cultural standards, + new technology, etc. For example: What does a right to privacy mean in the age of the internet, and online commerce, and emails, and CCTV potentially on every street corner... How could the founders' original intentions preclude a modern assessment of what the right to privacy really means today, in the modern world?

As I quoted in my previous post, Roe vs Wade relies upon the fourteenth amendment:

ROE vs. WADE, 1/22/73: State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.

Nowhere in the fourteenth amendment does it explicitly state that the right to an abortion is guaranteed. It articulates a right to privacy... and it is a judgment call about whether privacy encompasses female productive rights. So, it is safe to conclude from Roberts' originalist judicial philosophy that he will be a passionate advocate of overturning Roe vs. Wade.

So where do the others stand?

By my mind, there are four justices that can reliably be expected to vote against Roe: Scalia, Thomas, Roberts, and Miers, or her replacement if she steps down or performs badly in her hearings. And there are also four justices, who can reliably be expected to vote to uphold Roe: Souter, Breyer, Stevens, and Ginsberg.

One Justice remains a question mark... the pivotal vote in Planned Parenthood vs. Casey... and that is Justice Anthony Kennedy:

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Now, there's a lot of cause for optimism... Justice Kennedy co-wrote the opinion upholding Roe vs. Wade in Casey vs. Planned Parenthood. He also, more recently, wrote the opinion in a case outlawing the use of Capital Punishment for minors, citing foreign law, which makes it absolutely clear that he is not a die hard originalist like Scalia or Roberts... meaning that he can be swayed by the notion that changing times, and values should be reflected in the interpretation of the principles that the Constitution sets forth.

However there also remains a great deal of uncertainty surrounding him:

"Recently released private court records of Roe vs. Wade architect Justice Harry Blackman tell the story of how close the 1973 landmark came to being overturned in 1992. The records are accompanied by an oral history recorded by Blackmun, and show that Roe's overturn was imminent until Kennedy changed his mind and voted to uphold Roe. Blackmun's commentary reveals that Kennedy, a Catholic, originally voted to support the Pennsylvania abortion restrictions challenged in the case, but changed his vote after vigorous lobbying by Blackmun."

Contrary to common misconception, Sandra Day O'Connor was not the swing vote on Abortion... Justice Kennedy was. Nobody knows what exactly made him change his mind... and nobody can say whether it was a concrete and permanent change of heart, or whether his vote is once again up for grabs. There is some comfort in knowing that Blackmun has been replaced by Breyer, an intellectual heavyweight more than capable of standing up to Scalia, Thomas, and Roberts, who are sure to form an intimidating triumvirate. And, the fact that Kennedy co-authored the opinion re-affirming the three principles of Roe vs. Wade also is cause to be hopeful that Miers or someone worse, replacing Sandra Day O'Connor, won't mean the end of female reproductive rights in the United States as we know them.

All is not lost, perhaps, as I had feared. But, with another nomination to the Court looming (Justice Stevens is 85 and prey to God going strong) the 2008 election takes on even more importance. Hopefully, by that time the Democratic Party will have a leader with the conviction to fight the battle of ideas that we have been forsaking to Conservatives for too long. An Originalist doctrine of the US Constitution is not reflective of modern, mainstream American values, no matter how many times Hannity, Limbaugh, Fred Barnes, et all say so.

Related Links:
Case History: Planned Parenthood V Casey
Oral Arguments: Audio
On the Issues: Anthony Kennedy on Abortion
NPR: Blackmun's Papers
Blackmun: Roe nearly overturned in 1992

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20 comments:

Lisa said...

Interesting argument. But why would it be so wrong to leave the question of abortion up to the states? I have a real problem with any justice blocking parental notification for abortions for minors. I think that's a reasonable restriction. If a kid needs parental permission to take an aspirin at school, why doesn't it make sense to require at least that much for an abortion?

As for the other women, with an important decision like this, wouldn't it make sense to let them think about it for 24 hours before making that choice? Don't we want women to understand the risks and present other options, like adoption, before having an abortion? Sometimes there are complications, both physical and psychological, to the woman after her abortion. I think it would be wrong not to bring this to her attention beforehand.

I believe Roe v. Wade should be overturned. I believe that abortions kill viable human beings. I also suspect that overturning Roe is not likely to happen.

As to your last point...what would you consider mainstream American values?

Graham said...

Hey Lisa :),

Well, all those questions don't naturally follow. In Planned Parenthood vs Casey many of those restrictions were upheld. But, the way the case was brought attempted to undermine the larger principles established by Roe vs. Wade, and that was why it was pertinent for me in assessing where the current Justices stand on the issue.

Personally, I don't have a problem with a 24 hour waiting period. To be honest, I wouldn't have a problem with 48 hour waiting period. I think much more emphasis should be placed on the decision that is being taken, and the options that are available.

I absolutely do not agree with married women having to get mandatory consent from their husband. And, I do have some issues with Parental notification... If the standard you apply is a typical, functioning family, and parental consent for aspirin at school I can totally understand your position... but the reality is that this isn't the environment that many young women, or children live in, and you need to apply a different set of circumstance when assessing the impact that a law like this has. I am still undecided on the issue.

I am comfortable with States having the right to implement restrictions as long as they do not fundamentally infringe on Roe V Wade. Unlike you, I do not think abortions kill viable human beings. The definition of a viable human being used by SCOTUS is its ability to physiologically support itself independent of its mother. Having worked through some of my own ethical objections to Abortion recently I would pretty much agree, although there's some other stuff involved for me, too, which I discussed in my previous post. I also believe that a woman's qualified choice is a fundamental right, and shouldn't be criminalized under any circumstances.

I guess there is no such thing really as mainstream American values. The US is the most vast, diverse, and complex nation on the planet. That's what makes it so special. I was referring to the repeated assertion during the Miers controversy that an Originalist judicial philosophy, which IMO Catherine Crier accuratley described as almost biblical by design, represents the political mainstream. I do not think that people with an alternative judicial philosophy need fear the political implications of entering into a debate about these issues as some would have us believe. We should step up confident that its an argument we could win. That was really my point.

Thanks for the comment Lisa :).

Lisa said...

First of all, while I don't think the law should mandate the husband's consent to abortions, I think he should be told about that decision. There are some extreme cases where the guy is abusive, chemically dependent, or something similar to that. In that case, I would make an exception. But if the woman values the marriage at all, this is something they should discuss before she decides to go through with it.

No doubt there are cases like I mentioned before, where the parent might not be the right person to tell about this. I am just not comfortable with minors having abortions without telling their parents. There are dysfunctional families out there, no question about it. But in most cases, the parents need to sign off on abortions.

Even with my position on abortion, I also have a problem with jailing women for having abortions. I don't think we would actually do this, regardless of what happens with Roe.

There's one problem with your argument that having a person with Biblical values on the court would stifle honest debate, if that is in fact your argument. Believe it or not, many people in this country believe in Biblical values, and by that I don't mean representative of the far right (Pat Robertson, Ann Coulter, etc).

Most moral values, whether they are based on Christianity or stuff your parents taught you, are mainstream. There's nothing wrong with wanting one of our Supreme Court justices to have values like that, with the caveat that he/she will make decisions on a case by case basis, regardless of judicial philosophy.
It's the vocal minority of special interest groups like the ACLU, Planned Parenthood, NARAL, and others that are trying to silence our side. These groups are trying to stifle debate and put their own ideological clones on the court. If you want to criticize conservatives and Christians for wanting to have an Originalist on the court, then it should be just as wrong for these groups to do the same thing.

Graham said...

Hey Lisa :),

Very well argued as always.

I never said that biblical values would stifle debate. By biblical I was characterizing an extreme originalist judicial philosophy. However, I passionately respect that philosophy and those that subscribe to it… it has a great deal of intellectual integrity, and I think Justice Scalia is a great man, even though I disagree with him. I don't believe in stifling debate. I just believe that people with an alternative POV (my POV, lol) shouldn't be intimidated into believing anything less than a strict interpretation of the US Constitution is extreme. We can and should stand up in an honest debate to win the argument about the future of the courts. But, I totally respect alternative perspectives to my own.

I think part of the problem is that if you fundamentally believe abortion is killing a viable human being, and a qualified choice is not a fundamental right, then any and all restrictions are justifiable. Yes, I also believe a husband, or even her partner should be involved in a decision like this. I think anything less is awful and very sad. But, with restrictions like these that isn't really the point... the point is whether government has the right to intervene and compel a woman to acquire her husband's consent, or compel her to bring a child to term from the first weeks of her pregnancy, etc. That is my problem really... especially considering it's usually the very same people who are demanding for government's right to intervene here, who wax lyrical about how a free society should fundamentally limit the ways in which government pervades an individuals life, because of its inherent fallibility. That I think is hypocritical.

Also, the argument about Roe vs Wade is an argument about the criminalization of abortion. An abortion will be a criminal act in some states, and there will be criminal penalties, including jail time, and if some people have their way, much worse. After all if it is established that abortion is killing a viable human life, and female reproductive rights are not protected against government intervention by the right to privacy... there is nothing to stop state legislatures from saying abortion is an act of calculated murder. That's an extreme scenario but perfectly plausible.

I don't believe there's anything wrong with wanting your moral values to be embodied by Justices on the court. I don't agree with your characterization of special interest groups attempting to silence "your side." The recent response to Harriet Miers' nomination has hardly been the cries of an otherwise silent minority. This judicial ideology is a prominent part of the national discourse.

To be honest, I don't have much time for the ACLU. I try to be practical... I have ideals, but I also try and be realistic about the consequences. The ACLU brand of a rigid, dogmatic adherence to fighting for what they believe the Constitution says is just irresponsible. They do a lot of good, for sure, and I believe passionately in the first amendment, but, for the life of me I don't see the purpose in applying such time an energy into removing cultural bedrocks like the nativity scene from schools at Xmas time for e.g. I do think that verges on a type of activism which is offensive to a lot of people.

So there, for the first time on this subject, we agree :P.

Thanks for the follow up Lisa.

Lisa said...

It seems that we will never get to the end of this argument. :)

It's interesting that you would characterize Biblical values as extreme. The terms "extreme" and "Biblical" are not mutually exclusive. We will have to disagree about this. I just don't buy Catherine Crier's definition of Originalist(by the way, that word sounds really weird). It's entirely plausible that a SCOTUS candidate would have that same POV and still be just as qualified and competent as those who believe in judicial activism. I don't see the intimidation for the proponents of judicial activism . I don't see qualified SCOTUS candidates who were denied a seat on the court for believing the way you do. On the other hand, the groups I mentioned were actively seeking to defeat John Roberts because of his views on abortion rights. They sure didn't look intimidated or afraid to make their case against him. So, I disagree with your assessment there. Both sides are being heard, but the current debate about Harriet Miers, at least from my perspective, is not primarily about her views on abortion. I'll get to Harriet Miers in a minute.

I struggle with the practical implications of overturning Roe, which is why I'm not ready for that to happen yet. The arguments that you made in the original post were very convincing, and I can see how, from your experience, that criminalizing abortion could be considered wrong in the cases you mentioned. I have already acknowledged that there are exceptions I could make to any restrictions regarding consent for abortions. This all comes down to whether you believe abortion is just another medical procedure or whether you believe that it involves taking another human life.

If it's just another medical procedure, then we don't need to restrict it at all. On the other hand, if my view is correct, then the government should absolutely restrict the right to abortions. We have laws in this country already that say you can't kill people or steal things that don't belong to you. This is common sense, not an example of government regulation run amok. (There are better examples of that out there, but that is a separate argument.)

Locking up women who have abortions doesn't make much sense. I would hope that it wouldn't come to that. I would much rather have the states decide this issue for themselves than allowing 9 men with lifetime appointments to decide it for all of us. That wouldn't serve our interests very well. I think your scenario is unlikely to happen the way you think it will.

Now to Harriet Miers. We don't oppose her because she is an Originalist. We don't oppose her for her views on abortion, or on any ideological grounds at all. There isn't enough information about her to know how she will rule on the Court. We oppose her because we consider her unqualified. Her written rulings, opinions, etc, don't appear to be very coherent. She has a very short resume and history, compared to Roberts. There are too many unanswered questions about Miers to completely trust the President's testimonial about her.

We do agree on the ACLU. :) (Wow...finally a short sentence...lol!)

Graham said...

I never said people opposed Miers because she was an Originalist. If anything the opposite is true. I understand that she has a lack of a paper trail in constitutional law for people to fully trust that she subscribes to their philosophy. + her lack of experience, credentials and personal qualities don't imply that she'll be a powerful advocate on the court for that judicial approach. I'm not sure where I suggested otherwise.

It's not as simple as states deciding it for themselves as opposed to 9 men/women with lifetime appointments. Those 9 men or women are appointed by Presidents to interpret the constitution as to what are our basic rights. The issue is whether in the modern world a woman's qualified choice is a fundamental right that should be protected… embodied in the right to privacy. The reality is that abortion will be criminalized as a consequence of Roe vs Wade being overturned, and states will intervene in what I believe should be a private qualified choice for women and their partners.

I don't consider abortion just another medical procedure. But, I don't consider it "killing human life." I don't think you can force everybody into two extremes like that. Does human life begin at fertilization? Do you then consider the morning after pill murder? If you conclude no, then you recognize that human life is something that develops as the fetus physiologically evolves in the womb... within that context, personally, I don't feel comfortable criminalizing women for choosing to have an abortion within a reasonable time frame… I don’t feel comfortable with the government getting involved in a private choice under those circumstances. Personally, yes, I’d like you to explain to me more meddlesome ways that government could seek to and does intervene in an individuals’ life. I can think of very few. Your description of the state intervening to protect the fetus, indicative of laws against stealing, and murder, leaves out one crucial factor in this equation, the woman, whose proclivity to have an abortion I don’t think you can fairly compare to a thief or murderer.

I never characterized biblical values as extreme. I characterized a judicial philosophy as extremely biblical. There is nothing inherently extreme about the bible, unless, IMO, you believe in it literally and strictly... which is my point. I totally respect that belief system but I don't think is representative of the vast majority of people from my experience. That is what I mean by extremely biblical. I’m not attacking anyone for believing in, or learning from the bible.

I disagree with you about the role of special interest groups. Similar right wing groups have had unparalleled access, and influence on this Administration. Some people think that is some grand Neo-Con conspiracy. I don’t. I think it’s natural for political party’s to have their constituencies. The fact that Women’s rights groups are a constituency of the Democratic Party is something I’m perfectly content with, and very happy about. But, their role in these proceedings is mute. It doesn’t matter. I agree with the gang of 14 moderate Senators that the President earned his right to appoint judges in keeping with his philosophies by winning two successive elections. You can’t really dispute that. You also have a Republican Senate. That’s what really counts. It was the mid-terms in 2002, and election 04’ that really provided Bush with this amazing honor, that Carter never had for instance. The judicial philosophy of the nation was on the line in those elections, especially Bush vs. Kerry, and as Democrats, whether via intimidation, or via our own political posturing, we were unwilling to specifically put a debate on the table about the nation’s judicial philosophy. Personally, I think that was a mistake. Personally, I think it’s an argument that we can win.

Oh, and I wouldn’t consider myself somebody who believes in judicial activism. Subjectivity IMO is inherent in every possible interpretation of the constitution.

Graham said...

It seems that we will never get to the end of this argument. :)

I know, lol. I think this could go on, and on, and on, and on... :). Hopefully people reading will dig the debate though.

Jill said...

It's my body. I don't want the feds or the states telling me what to do. Abortion will happen. legally or otherwise. Teens do not do well telling parents about pregnancy. I have a neice who never told her parents. Sure there could be complilcations after abortion, but there are just as many problems with pregnancy especially with young girls.

Graham said...

Thanks for the comment Jill :). I agree with you.

Chris said...

Very nice essay Graham. The only comment that I can make is that with whoever Bush's nominee will be, because I do think that Miers will be abandoned, that we will lose parts of Roe.

And if Roe is lost, or great parts of it, then the states should be allowed to make their own laws regarding abortion.

Graham said...

Hey MJ, if strict scrutiny and the 3 part re-affirmation of Roe is replaced with the undue burden test, or the rational basis test regarding the states interest in potential life throughout a woman's pregnancy... then yes, that's what it means... state's have the right to criminalize abortion.

Personally, I think that's a terrible, terrible thing... allowing states to intervene in the private choice of a woman, couple, or family... allowing states to compel a woman to term from the earliest stages of her pregnancy... allowing states to jail women who have abortions, and doctors who perform abortions... and worst of all, forcing women, mostly poor women... to return to the back alley abortions, and self performed abortions of yesteryear, endangering their health and safety. It will be IMO a dramatic step backwards for fundamental rights in the US.

Right now, if Miers, or her replacement is confirmed, Roe should still be upheld, because of Kennedy. If you're going to make an estimate of how he'll vote, as things stand, considering he ended up co-authoring the opinion re-affirming Roe, I think it'll be ok. The problem is that Stevens is 85. Hopefully he'll last 3 more years.

I'm also reaching the conclusion that Democrats should vote to confirm Miers. Miers is basically a choice for us between someone with essentially moderate sensibilities, but extreme views on abortion, or someone with a comprehensive extreme originalist judicial philosophy, who also has extreme views on abortion. Do we want another originalist giant like Scalia, or do we want someone on the court whose vote can be swayed. Do we allow the unmoving triumvirate of Rehnquist(now Roberts) Thomas, and Scalia, to become four. Because that's what will happen if Miers is replaced.

As things stand, come the hearings, I'll probably be cheering Miers on. I know that'll get Alice's goat up, lol.

Lisa said...

It's true that you didn't say people opposed Miers because she was an originalist. (Can we find a better word to define this...I really don't like this one.) But we were discussing judicial ideology in relation to the view of an Originalist. How else could you make the connection between Biblical values and an extreme judicial philosophy without acknowledging that at its core, that's what Biblical values represent --an ideology? What was my point here? I forget. Oh yeah...I was arguing about an unimportant point.

This may come as a shock to you, but I would be surprised if what we are talking about ever happens. As you point out in the original post, those who want to overturn Roe don't have the votes right now. It may not ever come to the point where we have to make tough choices on this. You will have wasted all those lovely doom-and-gloom scenarios. How sad. ;)

You think abortion should be a basic right. It shouldn't surprise you that I absolutely disagree. Call me an extremist if you want to (but I hope you won't), but I think that if a woman doesn't want a kid, the best way to prevent that is not to have sex. If women should have the right to control their own bodies, then they should be responsible enough to make sure they don't get pregnant in the first place. I think it's an unbelievable cop-out to say that women should behave however they want to sexually, and there will never be any consequences to it.

Let's be honest here. It's not about all this lofty terminology "right to privacy", "women's reproductive rights", and whatnot. What we are talking about for the most part is women avoiding responsibility for conscious choices they made.

Saying that abortion is just another medical procedure is not an extreme position. I will concede the point that believing abortion kills human life could possibly fit in this category. Reasonable minds will disagree on the exact definition of when life begins. Nothing I've heard so far has been enough for me to have a set position on that definition. It's hard to make that distinction, but I don't rule out birth control altogether. That would be extreme, wouldn't it? :) My analogy was weak, but the reason for laws in the first place is to set boundaries for acceptable conduct in a community. Can we agree on this definition? If so, then the government is already telling us what to do.

You want examples of intrusive government. I have got one big one. Eminent domain. That's scary enough. The right to privacy is slowly being degraded every day, with new laws designed for a post 9-11 world. Just for the record, I believe some of those restrictions make sense, but the fact is that there are more of them now than there were before.

So you consider the Originalist judicial philosophy to be extremely Biblical. What else other than the view on abortion would fall into this category? When I define this term, what I think about is a person who has a strict interpretation of the Constitution. That in itself doesn't strike me as a Biblical or extremely Biblical philosophy. Do you believe someone who believes this way should not be confirmed?

It's true that Bush has had right-wing groups in his corner for a long time. Of course he's influenced by them. He doesn't do everything they want him to do, although it may seem like that. If influences like the NRO or Weekly Standard were pulling strings with Bush, we would be much better off as far as spending is concerned. I don't know how you can say that the left-wing groups don't control how the Democrats vote or that they don't play a significant role in shaping opinion in the party. The votes against John Roberts were primarly about his ideology, not about his qualifications.

Wouldn't the result of the election suggest that many voters agreed with Bush's view of judicial philosophy? We understood that the President would have the opportunity to appoint Supreme Court justices going into this election, and this was the deciding factor for many voters. The Democrats weren't intimidated, and they aren't now either. They just weren't interested in discussing it, and neither was John Kerry. I could write a whole post about how John Kerry's campaign was messed up from the beginning (and I did). Neither side at this point has been intentionally silenced. If the Democrats weren't so wrapped up in destroying Bush, they could actually have a debate on ideas such as judicial philosophy. At this point, they are not interested in doing that.

Graham said...

Hey Lisa, glad you got back to me :),

I agree that as things stand right now the votes don’t exist to overturn Roe vs. Wade. One of the things I was thinking about recently was that at the time of Planned Parenthood vs. Casey, Kennedy, the swing vote on this issue, had Rehnquist, Scalia, White, and Thomas arguing the case for overturning Roe. White has been replaced by Ginsberg, and Rehnquist by Roberts. If Miers is confirmed, I really don't see anybody positioned who wasn’t in place in 1992, capable of changing his mind.

I don't think that's fair. My "doom and gloom" scenarios are the practical consequences of Roe vs. Wade being overturned. It's easy to deal with the issue in terms of abstract ethics, as many people do, but the reason why fundamental female productive rights exist in the first place is in part because of the threats that were posed to women's health under circumstances where abortion was criminalized. And, that's what we are ultimately talking about, the right for states to intervene and criminalize abortion.

I don't call you an extremist, Lisa. I think you're very intelligent, thoughtful, and your ideas are extremely well argued. With every post you’ve made you’ve caused me to re-examine my perspective on things, and I dig the challenge. + I don't randomly call anybody an extremist. I don't believe that originalism, or conservatism in judicial matters is fundamentally extreme. But, it's strict, dogmatic application I do think has extreme implications that we need to consider ahead of time, rather than retrospectively decry what we've allowed to happen by not raising these issues when we had the chance, like we didn't in 04. Even if we lost, it is sometimes better to stand up for what you believe in.

I do, however, take issue with your generalization about abortions being motivated by women behaving irresponsibly sexually. If we want to start encouraging responsible sexual behaviour as a society we have a long way to go, and it doesn't begin or end with abstinence only programs IMO. I totally respect 100% the right of anyone to choose abstinence, I’m not denigrating or disrespecting that personal choice… but it's an unrealistic solution to these types of problems.

It's easy to generalize widespread irresponsible sexual behaviour and then extrapolate from there that this is why people choose abortions, but in all the encounters I've had with people who've made this choice, two of which I outlined in my previous post, not once has irresponsible behaviour been the root cause. However, I’m not suggesting this doesn’t go on, and I do believe deeply in personal responsibility, but, ultimately this requires education, and information, and access to contraception + recognizing the basic realities about what's going on, and what's always gone on.

I have issues with Eminent domain, too. I'm more supportive of new terror laws, we've implemented some strict new laws in the UK that I support, for example detaining suspects for much longer than 24 hours without charge. But, I didn't ask for examples of intrusive government policies, I asked for an equitable example to allowing states to intervene, and criminalize a woman for choosing to have an abortion within a reasonable time period... compelling her to term from the earliest stages of her pregnancy. I just find it hypocritical that those who believe in a lean state, and condemn any form of gov’t activism as a threat to individual liberties (while spending like Lyndon Johnson incidentally) because gov't is inherently fallible, also seek to endow gov’t with the most awesome powers like criminalizing abortion. I could bring up the death penalty here but then I fear we’ll be going on forever with this back and forth, lol ;).

re: judicial philosophy. Absolutely not, Lisa. You make me very frustrated because you keep mischaracterizing my positions when I've been absolutely clear. I wouldn’t mind but it feels like you reduce me to being this partisan shrill which I really try very hard not to be. I try very hard to be open and objective on every issue. I said that I agreed with the Gang of 14 moderate Senators that Bush has earned his right, via two election victories, to nominate a judge in keeping with his judicial philosophy. I do not believe and never implied anywhere that only judges who think like me should be appointed to SCOTUS, or that judges who believe in an Originalist judicial doctrine should not be appointed.

I never said that women’s rights groups don’t have an influence within the Democratic Party. I said that you can’t seriously criticize the role special interests have over Dems without paying close attention to the far right lobbyists, heritage foundation, religious right, etc and their immense influence over this Administration. Like I said. Some call this a grand neo-con conspiracy and I don’t. It’s natural for political parties to have their constituencies. You want to compare the influences of the respective extremes, just consider the 2008 primaries and the chance that Rudy Giuliani has to win the Republican nomination, compared to a moderate for Dems. Rudy Giuliani, a potentially great, unifying President, doesn’t stand a chance because he believes in Gay rights and is pro-choice. What does that tell you about which party is in thrall to its extreme elements?

I disagree with you about Kerry’s campaign. Tiny swings in either Ohio or Florida and he would be President right now, and people forget that. Tiny swings in either Ohio or Florida and we might have the deficit under control, progress in Iraq with renewed purpose, a Commander in Chief capable of responding to a natural disaster like Katrina, and a smarter approach to growing the economy in a stabile and secure way, as opposed to dramatic boom bust stimulus plans that amount to nothing more than comprehensive tax cuts and bloated gov't spending. But that’s a whole other story that we better not get started on :).

I don’t think the issue of the Supreme Court was thoroughly debated in 04. I think Bush’s sound bites don’t do the issue justice, and I think as Dems we didn’t take it seriously. That’s our fault. And yup we lost. But, I still believe an argument about the future of the Supreme Court is one that we can win, and one that we shouldn't be afraid of engaging with.

Thanks for your excellent arguments, as always, Lisa :).

Lisa said...

As far as the doom-and-gloom thing, I was being unnecessarily flip. I thought you would catch the sarcasm there. The main idea in giving the right for states to decide on abortion is more direct accountability to the people who they represent. If as you say, most people are in favor of your POV, then what exactly are you worried about?

I agree with you about fighting the fights that are worth fighting, like judicial philosophy. But with the hearings structured the way they are now, we will never hear that argument. In the attempt to not appear dogmatic on any issue, SCOTUS nominees don't answer questions that would clarify their judicial philosophy with any depth. Even if the hearings would produce a clear picture of a nominee's judicial philosophy, when confirmed, there's no guarantee the justice will follow that philosophy in his/her rulings in the future.

I am not saying that all abortions are a result of irresponsible sexual behavior. I'm saying most of them are. The examples you mentioned in your original post are exceptions to this. I would condemn any government and any law that would jail women for doing what those women did under those specific circumstances. I agree that abstinence-only programs are not enough. I would support further education/information/access to birth control, although I don't think that teens should be given the same leeway as adults as far as the birth control is concerned.

Perhaps it's a semantical misunderstanding with your question about government intervention in our personal lives. In the context you framed it, you're right. I can't think of anything that would accurately compare to forcing a woman to have an abortion.

I don't believe in name-calling, even when I completely disagree with someone. I was making no assumptions about your position on judicial philosophy. That's why I asked the question. This has been such a long discussion that it's possible I missed part of what you had already said about this subject.

Of course both Republicans and Democrats have special interest constituent groups. What neither party seems to get completely is that these influential groups don't necessarily represent the majority of the people. I think Giuliani's got more of a chance than you think he does of getting the nomination.

Here's the difference. There are no legitimate moderates in the Democratic party. They haven't had any moderates running for President recently either. The only possible exception to this might be Bill Clinton. Kerry certainly wasn't a moderate. His voting record betrayed him. Hillary certainly won't be, no matter how hard she tries to make that case.

Here's why I think the Kerry campaign was mismanaged. Public confidence in Bush was eroding and the anti-war crowd's message was resonating with people. The economy was perceived to be a problem. There was a great number of other concerns people had with Bush, and yet he still won. In that climate, Kerry should have smoked Bush. If he had concentrated on those concerns instead of focusing on his war service in Vietnam, he would be President today.

Short answer: I agree about the spending and disagree about the tax cuts. Federal, state, and local governments all share blame for Katrina. I'm not sure what you think Kerry would have done differently in Iraq, although I will acknowledge that the post-war strategy could be improved.

Let's have the argument about the Supreme Court. Bring it on, as Kerry says. I'm just not sure how we can convince the average citizen to care about the result.

Graham said...

I don't remember saying anywhere that most people are in favor of my POV. I don't understand statements like that. I said that the national argument, in the context of a Presidential election about the future of the Supreme Court, is one that we shouldn't have shied away from, as Dems in 04. The crux of the issue for me is that the US constitution embodies fundamental rights that I personally consider compromized by allowing states to criminalize abortion, compel a woman to term regardless of the stage of her pregnancy, while forcing others, usually the poorest, to return to the back alleys/performing self abortion, once again jeapordizing their health in a way that Roe vs. Wade specifically set out to prevent. Of course, we can throw away the constitution, and the notion of fundamental rights and allow states to vote on all kinds of things like separation of church and state, which causes just as much division on the court in terms of its practical application. If you are a proponent of decentralizing democracy closer to the people like this why stop at Abortion? I think reducing the argument about to states rights to greater Democracy has many far reaching implications.

In regards to judicial philosophy in the hearings, you’re right, Lisa, it is complicated. That battle fundamentally exists in terms of who is elected President to put forth a nominee, and who is elected to the Senate to scrutinize that nominee. Maybe more emphasis should be placed on these elections for these types of discussions.

Most abortions are as a result of irresponsible sexual behavior? That is an implausible generalization, and shouldn’t be the basis for drawing conclusions. What do you consider irresponsible sexual behavior?

Abortion as a form of birth control is offensive to me and I imagine most people, but I think it's presumptuous in the extreme to portray this practice as ubiquitously representative of women who make this choice. Personally, I have more faith in people generally, and from my experience in both the US and UK I’ve drawn different conclusions...

...But, lets face it, the only absolute fact is that either of us are in no position to make absolute judgments about people's motivations and their life experiences, especially on an issue as private as this.

I think it's widely accepted in Republican circles that Giulliani can't win and won't run. You can already see the kind of problems he'd face from the response Bill Frist received for coming out in favor of Stem cell research. You can see from the response to Harriet Miers, who is passionately pro-life, and conservative on most issues, that the main thrust of the anger, while frequently referencing her credentials (or lack there of), ultimately stems from the fact that she isn't explicitly Conservative enough. Same goes for John McCain. I don't see how a moderate Republican will become your nominee in 08. George Allen is your best shot at the moment IMO.

What... There are no legitimate moderates in the Democratic Party? That's a broad sweeping statement that makes me question what exactly you consider a moderate. Evan Bayh former Indiana Governor, now Senator? Barak Obama? Mary Landrieu? Bill Richardson in New Mexico? How do you judge whether they’re a moderate? By there specific policies on economic, or foreign policy issues, or the way they are characterized by right wing talk radio? Part of the problem is that the political center has been squeezed by this Administration. Clinton retained approval ratings between 58-64 points throughout his second term even during the Lewinsky scandal. Same with Reagan. This Administration has divided the nation so dramatically very little room remains for either side to perceive each other as anything other than extreme. The national discourse is sullied into two competing sides more interested in attacking each other than addressing people’s problems. In a way politics has splintered away from the real, practical life experiences that most people are concerned about. I think that is the Democratic opportunity in 08. We can move to the center, and satiate our extremes (Dean, Sharpton, Sheehan, Kucinich, etc) with a great deal more ease than Republicans can.

Kerry out pointed Bush on virtually every domestic issue in 04 by most polls. In my opinion, you, like many of my Democrats, dramatically underestimate George Bush's political prowess in your assessment of the election. You forget that before the Dem primaries in the wake of the Iraq war, and 9/11 not a single Democrat had any credibility. That’s what Kerry gave us. That’s what underscores the fact that critical analysis of the way the war in Iraq is going is no longer considered a treasonous act. Kerry stood up in a debate on foreign policy with George Bush and won comprehensively. He won on substance. He won on the solutions to the problems we were facing.

Kerry won the two subsequent debates and at the end of the third Bush gave an honest, sincere soliloquy about how profoundly he loved his wife and in that brief, honest moment highlighted all of Kerry’s shortcomings. To win a general election you have to emotionally connect. That’s what really makes people vote. Their hearts – hopes and fears. Our rational observations are transient. The notion he should have smoked Bush is crazy. He received 48.5% of the vote, and came within touching distance of victory. His personal limitations cost him the election IMO.

+ current polling suggests otherwise regarding Hillary. There’s a reason why people on the right are taking her so seriously, beyond the fact that they hate her so much. Point being, I profoundly and wholeheartedly disagree with your assessment that there are no moderate Democrats. Like I said, how do you define a moderate Democrat?

I also look forward to a serious balanced discussion about the future of the Supreme Court, where hopefully two dimensional charicatures, and smears can be taken out of the equation, and the many different competing ideas can stand on their own merits. If Hillary does win the nomination it will most certainly be on the table in 08.

Lisa said...

Sure you did. You wrote on more that one occasion that people with views like mine are not mainstream or, more accurately, that those views don't represent the majority of people. May I suggest, that by extension, this could be interpreted to mean that most people agree with you. (I am open to the possibility that I have misunderstood you,and I am acknowledging that possibility up front here...) You want to argue judicial philosophy and encourage both sides to seriously engage in the debate, great. I agree it's a debate worth having.

I would respectfully request that we table the abortion debate (at least as far and you and I are concerned). I don't think either of us will budge an inch on this, and I'm probably harming my own case by continuing to debate it. :) As a last comment on this, I will admit that you have made me think this through a lot more than I had previously. So thanks for that. But I think we will just have to agree to disagree on this issue.

Guiliani will still be in the conversation for Republican nominees. I agree with your assessment on Harriet Miers. John McCain has got other drawbacks to his candidacy that have nothing to do with being a moderate. From what I've heard about George Allen, he sounds like a worthy potential nominee.

What I meant to say was that I don't see very many legitimate moderates in the Democratic party as viable Presidential candidates. I define a moderate by their specific views on economic, domestic, and foreign policy issues. You have read the current post on my blog expressing frustration with the current culture in Washington, so you know how I feel about that. You're right that Clinton won by going to the center. What I'm not sure of is whether Democrats can successfully sell Hillary as someone who is representative of that center position, regardless of her vote for the war in Iraq. The fact is that Hillary may be the most centrist of any other potential nominee the Dems have thought of so far. What makes the counter-argument hard for the Republicans is that she, like Harriet Miers, doesn't have a paper trail that could prove that she is not a centrist. She polls well too, as you said. Why wouldn't we consider her a threat?

Your point that Kerry couldn't relate to people is absolutely correct. It is why he lost the election. But if he had been able to connect on a personal level, I still believe that my original statement is valid about the margin of victory. Disagree with that opinion/analysis if you want to. :)

Alice: In Wonderland or Not said...

You two seem to be doing just fine. Lol

I too think the constitution should be fluid it is ridiculous to have a rigid constitution in this day and age -- Fluid to me means bendable.


I'm with graham on the issue of parental consent at the situations that most of these kids come from at least many are such that parental consent could be harmful to the or impossible to obtain. The whole issue for me is the socioeconomic position of the people this will hurt; women on the lower socioeconomic end- increasing the likelihood of the girl not getting more of an education which indeed perpetuates her lower socioeconomic standing. I don't think a fetus is viable until it is viable outside the womb. I go so far as to say viable outside the womb with the technology we have today.

Marriage/consent husband; no this should not be mandated in any way. One can't presume the percentage of situation where this would be problematic to be small and again the largest percentage of situations where this would be occurring are also more likely to be problematic relationships themselves. When the men birth the babies they can have a choice until then I don't think it should be mandatory.

I am opposed to her nomination as you know; there are many reasons which include her ideology but I stand on my post that she is just not qualified in any way to sit on the SCOTUS. I have yet to see anything that makes me think she has what Roberts has to offer in the way of cerebral brilliance. ;)

avereragebusinessman said...

Wow, what a totally exhaustive and complete yet perfectly thought out and freindly debate.

I don't think I can add one thing that would make a worthwhile contribution.

Nice going.

Girl on the Blog said...

Wow... I am like averagebusinessman... I don't think I can add anything either that would be sufficiently valuable to this debate. But I do have to say... Graham...here, here!!

Graham said...

Thanks Average Businessman, and GOTB :), I thought it was a really cool debate too.

One of the things, Alice, that I would say is that, is that if you have a choice between a brilliant, intelligent, strong speaking originalist, or an unqualified, less than impressive one. My personal preference would be for the latter. I listened to some of Roberts' arguments before the court today and he is no Rehnquist, at least not yet. The last thing we need is for the Miers nomination to fail, and we get another powerful figure like Scalia. That would be awful. People should think about the consequences of sabotaging Miers.

A couple of interesting things to bookend this thread:

From the WP:

Support for Supreme Court nominee Harriet Miers has ebbed. By 43%-42%, those surveyed say the Senate shouldn't confirm her. That's the first time a plurality, albeit narrow, has opposed the confirmation of any high court nominee over the past two decades.

That really is pretty bad. The truth is that she has no constituency out there arguing her case.

+ Ann Coulter agrees with my original reasoning of this post, that even with Miers confirmation the votes don't currently exist on the court to overturn Roe vs. Wade.

Hang on there Justice Stevens. Just 1000 days to go :).

+ Lisa:
I just wanted to say one more time that I really enjoyed your contribution to this thread, and so it seems did everyone else. I'm just nervous about posting again now because I know I need to be prepared for such a comprehensive rebuttal :P. Anyways, thank you for your POV :).