July 22, 2005

Bush Nominates a White Clarence Thomas

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Well, I was wrong about one thing concerning the Supreme Court nominee: Bush did not choose a minority or woman judge in order to use those qualities to quash dissent by claiming racism or sexism. Instead, he went fundie all the way: a relatively young straight white male, a solid conservative with little if any paper trail. In other words, a white Clarence Thomas. Someone who seems like a straight arrow, but with very little experience (He has been a judge for all of two years); there's not much in the way of substance you can object to because there isn't much substance in the first place. Bush is throwing a fast ball right over home plate, daring the Democrats to take a swing at it. And there's one thing motivating the Democrats to take that chance: Roe v. Wade.

Bush met with a lot of people before announcing his choice (a week early, clearly intended to take the heat off of Rove), but it's clear that he kowtowed to one constituency only: the fundamentalist right, which is as happy about Roberts as it was scared of Gonzales. Roberts is their boy. And rather hardcore, at that: not only has he stated an aversion to Roe, he also filed briefs to the Supreme court in favor of a ban on flag burning and to allow prayer in public schools.

But it is Roe that is catching everyone's attention. The conservatives are pooh-poohing the idea that Roberts is against Roe, and you can easily understand why they might try: a very big majority, 68% to 29% (and that majority is growing with time), believe Roe v. Wade should be upheld. So the right wing is pointing to one quote by Roberts in his confirmation hearings to the circuit court a few yours back, where he said that "Roe v. Wade is the settled law of the land." However, this statement is meaningless, as it only refers to Robert's willingness as a lower-court judge to bow to a Supreme Court decision. If Roberts is confirmed and goes to the Supreme Court, he will no longer have to bow to the bench he sits at. In fact, in 1991, Roberts made quite clear his feelings about Roe:

We continue to believe that Roe was wrongfully decided and should be overturned... The Court's conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution.
Some call this "contradictory" to his 2003 quote, but since that later statement referred only to a lower court position and gave no clue whatsoever about how he would rule on the Supreme Court, they don't contradict at all: both can be stated by an anti-Roe conservative. The "settled law" quote is little more than a weasel, an attempt to mislead and keep the truth off the record.

In fact, it is more likely he's anti-Roe: Roberts claimed that he was simply stating someone else's case, but his letter-of-the-law-but-not-the-spirit conditional response in 2003 made it clear he was against Roe but wanted to avoid answering that question. If he was pro-choice or really didn't care which way the case went, he would have said so. And the way conservatives are acting, it's just as clear that they believe this too, and are only in mock denial about Roberts being anti-Roe, while giving a wink and a nod to their pro-life constituents.

Not to mention, of course, that Roberts' career has been at the heart of conservative politics. From 1980 to 1981, Roberts clerked for the notoriously extremist right-wing Rehnquist. From 1982 to 1986, he served as a Reagan White House counsel. From 1989 to 1993, he worked for Bush 41 as Principal Deputy Solicitor General under Kenneth Starr, when he wrote those briefs that the wingnuts want us to believe weren't his opinion; he was nominated for the appeals court by Bush 41 in 1992 (and was rejected by the then-Democratic Senate), and he was subsequently a corporate lawyer. He worked for Bush-Cheney in 2000, and gave critical advice to Jeb Bush to block recounts in the incredibly partisan battle to get Bush appointed president. Bush then obligingly gave Roberts a circuit court seat in 2003. It would be hard to find a judge with even more conservative credentials than that.

When Roberts was a White House counsel, he worked for Fred F. Fielding, who now says, "I know he's conservative by talking with him about issues. ... [Roberts supported expansive presidential powers and tended toward a] more literal reading of the Constitution." It is therefore highly doubtful that Roberts is a closet pro-choicer who just happens to have been a rabid conservative all these years, forced to write legal briefs he personally disagreed with.

This year, in late November, two cases dealing with abortion are coming up. And even if the court continues to uphold Roe v. Wade, Roberts is, as a young conservative whose opinions will shape the court for decades to come, dragging the court towards the elimination of reproductive rights in this country. Already 30 states are ready to outlaw abortion should Roe be overturned.

Therefore, the Democrats have to stand up on this one. Naturally, they would like to be able to do it on some personal scandal or other quick-and-easy side point, but the likelihood is that this will not come up. And either way, I think that the Democrats standing up on Roe v. Wade is best. If a Clarence Thomas-like scandal does come up, the Republicans know very well how to handle that--and if the scandal is overcome, the Democrats will not be able to object as strongly on ideological grounds. Furthermore, upholding Roe v. Wade is worth taking a stand on, completely based upon its merits.

Now, Republicans will probably all support Roberts, at least enough to get a 50+1 majority, meaning that this will come down to a filibuster. And if that happens, the GOP will, without doubt, claim that the Democrats violated the "extreme circumstances" clause of the prior agreement to avoid the nuclear option (anyone who honestly claims that an anti-Roe Supreme Court nominee in not an "extreme circumstance" for a Democrat is an idiot), and may well attempt again to do away with the filibuster. And if they are successful in that, then Roberts is a lock for the position.

However, it is not assured that the Republican Senators will be so solid on this. Two-thirds of the American people solidly support Roe v. Wade. Furthermore, a similar 2-1 majority of Americans are opposed to doing away with the filibuster. As a result, Republicans could be in for a very bloody fight: if they go all the way on this, setting off the nuclear option and putting an anti-Roe judge on the Supreme Court, they could be pissing off most independents and even many Republicans--and next year is an election year. This could, in a way, be for the Democrats what gay marriage was for the GOP: a wedge issue that could tilt the balance of power come the next election. An unwavering Democratic stand on the issue would only make the influence of all of this more significant and visible come next fall.

This could be seen as a do-or-die turning point for the Democratic Senators. If they can't put up a fight when two-thirds of the country is behind them, then maybe we need some new Democratic Senators.

Posted by Luis at July 22, 2005 11:34 PM

Personally, I don't think the Democrats can stop Roberts from getting in.

The gang of 14 basically gave the Democrats a one shot one time fillabuster card. That is they can appose one appointment, then the Repugs will pull the nuclear option. This then requires some very clever maneuvering on the issues, and I must say Reid has earned my trust in this regard.

First Reid is trying to tone things down - the issue comes to a head in September, which means its still Rove hunting season, keep your eye on that ball right now. The Rove scandal has the potential of bringing down the whole Neocon coup. So its more important than Roberts, plus, a successful August on Rove, shifts power to the Dems in September. If they can thoroughly discredit the Bush regime in August, apposing Roberts in September will become easier and they may simply just want to string things out a bit to keep Roberts off the Bench in October when abortion topics are slated.

Second - it doesn't hurt the Democrats if Roberts gets put on the Supreme Court. But they must make the most of it. They must expose and bring attention and light to Americans the fact that personal privacy rights are being thrown out the window - and that throwing began with a vote for the Republicans in 2004 - they must learn that elections do have consequences.

So the Democrats would do well to cull out Roberts far right beliefs and politics so that when he does become a Supreme Court Justice, it sends a terrifying chill through the electorate. They can choose to use the fillabuster card but they have to be careful to not look obstructionistic.

As you point out, their is little to stop Roberts if the Repugs so will him to be on the court. Its how he gets there that matters. The terror of a right wing supreme court may just be the straw that shifts the electorate to the left. Rhenquist looks to go at least one year, despite failing health, he likes the power and it probably makes him feel more viral so he's likely to hang onto it until he's healthier, and then why let go. But Rhenquist will let go sometime in the next four years, that seems certain, and he might wait until Bush's last year to do it.

I prefer that the Dems keep their fillabuster card until Rhenquist goes. As long as he's there, Roberts gives the Conservative's a temporary majority that can be reversed when Rhenquist goes. If he goes before Bush, then drop the fillabuster - the Repugs might pull the nuclear option but it seems certain that the electorate will tire of the Neocons and a new generation coming of age will move the bastards out - in which case the nuclear option will then favor the Dems in the Senate once they arrive at a majority status sometime either after 2006 or 2008. If he goes after Bush then it doesn't matter. And if the threat of Roberts temporary conservative majority on the bench shifts the electorate to the left, the Republic would be out of harms way as early as 2006.

Its one way to teach the electorate that elections have consequences. Personally, I believe that this country will outlaw abortion and a few other rights. After all, we were the only country to prohibit Alcohol production, trade and consumption.

The prohibition of alcohol - which occurred during a republican regime of the 1920s (passed in 1918, implemented in 1919, ran until 1933) - while seemingly ethical to its proponents, proved to be "unefficable" because the supression of the vice of alcohol gave rise the even greater vices: proving that law is not just a matter of ethics, but also of efficacy.

Every other civilized nation in the world was smarter than we were. There's no evidence to suggest that we have gotten any smarter, and plenty to suggest that we have gotten dumber. The experiance of prohibition gave us the Mafia and organized crime which has never completely gone away. But one thing seems certain, the right to drink alcohol seems safe and secure for time to come, baring a complete take over by the religious right of course.

Prohibition of Abortion, while its advocates argue is the ethical thing to do, is likely to prove equally "unefficable" as prohibition of alcohol, but for different reasons. A black market will emerge and some physicians will be doing marginal procedures that are legal but achieve the same ends, and rich girls will jet off to Switzerland for theirs.

We already know, the lowest abortion rates exist in Belgium, Holland and Germany. Places that where abortion is freely available but sex education and birthcontrol is at a high level. Under Bush II the abortion rate has gone up - had he maintained the same rate as that which existed at the end of the Clinton term there would be 50,000 less abortions, and keep in mind the rate was in decline under Clinton, so, if 50,000 doesn't penetrate your conscience, it is not unreasonable to presume that a Republican President gave rise to 100,000 more abortions than had Al Gore been elected. (If you are against abortions, you shouldn't have voted for Bush.)

When abortion becomes illegal, the rate of abortions might actually go up, and in any case it will never go done to the rates found in countries where it is freely available but supporting policies mitigate against the occurance. People will begin to realize that it is a demand problem, not a supply problem, and eliminating the supply did not eliminate the demand. Add onto that the various rise in other, unforeseeable vices, like those in the 1920s, and one can see the tide eventually turning agianst prohibition, sooner or later.

The problem with America is we continue to be a stupid people. We outlawed alcohol, now we'll outlaw abortion and screwing ourselves again. And I must say, it does bother me that my right to drink alcohol is not universal, any state or county can outlaw it if they want.

For all this I am willin to place my trust in Harr Reid. Reid is becoming my hero. Watching what takes place in the Senate over the next few months should be brilliant theatre with lots of subtle nuances that could have big outcomes.

Of course there is the chance that the Repugs could succeed. I am of the mind that the 2000 election was a coup and 2004 was a follow up coup. We are living in near dictatorial times.

God save the Republic, as we seem unable or unwilling to.

Posted by: Tim Kane at July 23, 2005 01:38 AM

anyone who honestly claims that an anti-Roe Supreme Court nominee in not an "extreme circumstance" for a Democrat is an idiot

Well, count me an idiot, then. I have two things to say that will probably disqualify me from being a true "progressive" type.

First, as much as I hate to say it, Bush won. This time around, anyway. It's his right to nominate someone that he likes, and you just know darned well that he's not going to nominate someone who is pro-choice.

The two-thirds support for abortion remaining a right isn't as solid as you seem to paint it, either, Luis. There's a lot of people who're like my dad- they're really really really uncomfortable with abortion, and would probably freak out if (say) my sister were to get one... but they're not very comfy with the government telling women what to do with their bodies, either.

So they're reluctantly pro-choice, but when "reasonable" restrictions on abortion are proposed they generally support those.

Given that Bush did win, and given that he's simply not going to appoint someone pro-choice, and given that the nation isn't as solidly pro-choice as some of us would like, I think that making a litmus test on Roe is probably a bad move for the Democrats.

(I recognize that the third given is one we're going to disagree over- so be it.)

The more important question is this- if the Dems only get one filibuster, they should use it at the most important time when it'll have the most impact. Is this the time?

I think most signs would point to "yes", because you have to figure of the present Supremes, the most likely to retire (or die) is Rehnquist. Having Rehnquist replaced by a conservative is basically no change, but having O'Connor replaced by a conservative is definitely a change.

From that perspective, maybe now *would* be the time to use the filibuster, and abortion is (I suppose) as good an issue to use as anything.

Here comes the second semi-controversial thing.

Losing Roe V Wade doesn't matter. At least not very much.

Here's why.

Abortion, while legal, is very very hard to come by in the middle of the red states. Driving through Nebraska, you get this impression, mainly because there's friggin road billboards that're vehemently pro-life.

But the fact is that in the more liberal (ie, Democratic) areas, an abortion is much easier to get than in the conservative ones.

If the Supreme Court were to overturn Roe, what they'd be saying is that it's okay for states to outlaw abortion. The battle would then switch to the state legislatures, and I think it's obvious that the states that would outlaw abortion are the ones where it's very hard to get an abortion right now anyway!

The battleground (purple) types of states would have a hard time banning abortion, I think. Certainly the "first trimester" types of rules would be a good compromise in many of those places, and since just under 90% of all abortions are in the first trimester anyway, the effect of it would be that overall, the #s of abortions in the US wouldn't drop very much if Roe were overturned.

I hope this makes sense, it's late here. :)

Anyway, what all this means is that if it were up to me, tactically, I don't think I'd go nuts trying to block Roberts. I don't think we'd be successful anyway, and even if he gets in and overturns Roe, I don't think that's all that big a deal.


Seattle, WA

Posted by: Paul at July 23, 2005 07:44 PM

Well, it's not extreme to hope to Roe v. Wade is overturned. Roe v. Wade will one day be overturned, and it should be.

Men and children have rights, too. Children have the right to live.

And, I'm not even particularly religious.

If women don't want to have children, they need to keep their panties up and their legs crossed.

Here in the U.S., we do not give men the right to run away from their sexual indiscretions. We dog them for life for child support. Women need to be responsible for their sexuality, too.

Why do you want to give women a free ride?

Posted by: Stephen at July 29, 2005 07:01 AM