Wednesday, July 20, 2005

Supreme Court Pick

From what I’ve read the Roberts pick is a good one; all the right people are cheering for it, and the guy already got a unanimous approval to the Circuit Court by a less Republican Senate. PBryon, however, points out that as a man and a father I shouldn’t support a guy who dresses his son in saddle shoes (not to mention the seersucker suit with short pants). I’ll blame that one on his wife.

So how can he possibly be rejected to the Supreme Court? Can the Dems claim that it is OK to have a partisan ideologue in the Circuit Court but not the SC?

Well, that is the argument the Democrats will have to make, and my guess is that they’ll be reluctant to make it. Many of the more moderate Democrats, and most of those who comprise the set of “compromise” Senators who delayed the nuclear option, face re-election soon in states that went for Bush. A state that goes for Bush, but also supports a Democratic Senator, is one that generally prefers the social safety net offered by Democrats, but the cultural conservatism offered by Republicans. They won’t cotton well to a Senator who will deny them one, and a Democrat who tries to lead the charge against these guys could be sharing a cubicle with Tom Daschle.

That said, clearly a person at the SC has more power than one at the Circuit, and so what one might tolerate at the Circuit level one could reasonably oppose at the SC level. I was intrigued by two quotes from Roberts: one from a brief he wrote while working for the Bush I admin saying that Roe v. Wade should be overturned, and one from his confirmation hearings to the Circuit Court where he said that he considers Roe the settled law of the land. Now, in writing for the Bush admin, his writings had to reflect the views of that administration, and so the views are not technically his own. The question is: what is his view?

I would say that what Roberts said in his prior confirmation hearings are not necessarily his view of what can happen at the SC level. To me, his statement clearly meant that he doesn’t have the authority to overturn the Supreme Court from a lower bench. But doesn’t all of that change when he is at the Supreme Court? It wouldn’t be the first decision reversed by a subsequent Supreme Court, would it?

Independent of the argument of the legality of abortion, I’ve always considered the argument of the Constitutionality of abortion laughable on its face. But once a Supreme Court has decided, apparently that is the only argument for Constitutionality that one needs. Now, it goes without saying that there was a political demand for abortion rights prior to Roe v. Wade that went unsatisfied under many prior Supreme Courts’ interpretations of the Constitution, which made Roe v. Wade a reversal of what was clearly the “settled law of the land.” What’s good for the goose …

Here is an idea - reverse it, and then let Ted Kennedy start the Amendment process to have it democratically become the law of the land, if it has the legs to go the distance. Of course, it doesn't and never has, indicating that no one who actually ratified the Constitution was signing onto Roe v. Wade. Note that if Roe was reversed, it would merely restore the states to a position of regulating abortion, it wouldn't make it illegal. Even absent an Amendment, individual states could democratically choose it. The interesting implication would be this - absent the anticipation of the possibility of reversing the reversal with another SC pick, I would anticipate that abortion would loom less large in the Presidential elections, and I think that, on balance, that would favor Democrats. There is a cloud to every silver lining.

5 Comments:

Anonymous Jim O said...

Is Roe vs Wade going to be revisitied in the next incarnation of the Supreme Court? Or is it just a litmus tests for each side to rant and rave about?

Alternately, do you think that the discussion and debate concerning the congressional review of Roberts would be less acrimonious if the people involved weren't on camera? Or is nasty attack politics here to stay?

2:02 PM  
Anonymous geraldy said...

In general, I'm happy about the Roberts pick; he seems to be a solid conservative. But, I have to admit, that I'm a little disappointed that he's not more of a "sure thing" on abortion and school prayer (see Ann Coulter's sage column today). We should have a candidate who is guaranteed to overturn the travesty that is Roe v. Wade -- a decision that has led to a higher yearly death rate than the Holocaust. Once Roe v. Wade is overturned, we can get to work on a law in Congress that would completely outlaw abortion. Letting the states do this individually is too much of a risk.

The Supreme Court is an institution that can be at the front of moral change (see Brown v. Bd. of Education). The Court should lead us back to our Christian roots.

2:14 PM  
Anonymous Anonymous said...

I think that your prediction regarding the political ramifications of overturning Roe v. Wade might be off a bit. Consider Justice Thomas' dissent in the recent medicinal marijuana case. Breyer, Stevens, Kennedy, Souter, Ginsburg, and Scalia( ?!?) claimed that someone growing pot in their California backyard, for their own use, shifts the national demand curve for marijuana, and thus affects interstate commerce. Clearly they would have to rule that the abortion laws of individual states affect the national market for diapers, Disney DVDs, Star Wars merchandise, etc.

So a federal ban on abortion
( without an amendment) would be constitutional. Thus abortion would be on the table in every federal election from now on ( if the federal ban wasn't in place, it could be; if it's in place, it could be repealed). I agree that this would likely benefit Democrats, as it would shift the focus from the morality of abortion ( where the majority of Americans agrees with the pro-life side ) to the question of whether or not women who have abortions should be imprisoned
( where the majority agrees with pro-choicers).

JohnW

2:54 PM  
Blogger Professor Vic said...

I would concur with JohnW. I think politically the Court decision in Roe v. Wade has provided nice cover for pro-life politicians who knew they could rail against abortion as much as they wanted without any chance of actually having to outlaw abortion.

There is a huge difference between theory and practice here or as JohnW says, the morality of abortion vs. actually punishing those involved. It's easy to take a tough stand on an issue when you know your law will never be enacted.

This is totally a guess here, but I would say that if the Republicans in the federal government were to pass a ban on abortion that was upheld by a reconstituted Supreme Court, it would cost them both the presidency and both houses for years to come.

As one final note to Geraldy, while there is much to be said for the Court leading "us back to our Christian roots," there is certainly no unanimity of opinion among Christians about what "our" roots really are. Ask the Protestants and the Catholics in N. Irelands, Christains both, about what their common roots are.

Obviously, Geraldy's reading of the Bible leads him/her to believe that abortion is murder, but a reasonable person could also read the Bible and come to a different conclusion. For example, in Exodus 21:22, the Bible says that a man who strikes a pregnant women and kills her shall be put to death but a man who strikes a pregnant women and only causes a miscarriage shall only be fined. That's the closest thing to abortion I can find in the Bible and my interpretation of that passage leads me to believe that killing a fetus isn't murder. So whose Christian roots do we go back to?

We could also go back to "our" Christian roots that held that owning slaves was acceptable (also in Exodus 21), but I don't think anyone whose holds up Brown v. Board of Education as a shining example of the Court as a leader moral change would support those particular roots, either.

5:27 PM  
Anonymous geraldy said...

Professor Vic,
I don't need my Christianity to tell me that abortion is wrong. If one doesn't see that killing over a million babies a year is morally wrong, then one has to wake up.

Abortion is merely the most tangible government manifestation of everything that is wrong with our society. A truly Christian nation would not have sex scenes hidden in video games, rampant pre-maritial sexuality and licentiousness, and pre-teens playing Clinton-Lewinsky "games." By supporting the outlaw of abortion, we make a good start in addressing the fundamental problems of our society.

7:32 PM  

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