Who could save Roe?
There's a lot more at stake in Sandra Day O'Connor's SCUTUS replacement battle than just the fate of Roe vs. Wade, as Jeffrey Rosen keeps telling us. With its current composition, the court is roughly 2 full votes away from being a full-fledged firebreathing anti-Congress behemoth; 1.5 votes away from overturning Roe (the extra half vote belongs to Justice Kennedy), and one vote (O'Connor's) away from becoming a much less moderate, humane, precedent-loving ruling body on subjects including, but by no means limited to, affirmative action, election law and the symbolic separation of Church and State.
Still, ending the era of Roe would mark a sea-change in American politics and would solidify the Bush presidency as the most radically rightwing in American history, which seems to be increasingly how Bush and Company wants it on domestic issues. And Roe is going to be at the heart of the O'Connor replacement battle. I'm no expert on SCUTUS stuff, so the following rhetorical questions are pretty basic. The questions are: (1) If the early media attention to Attorney General Alberto (Abu) Gonzales actually foreshadows his nomination to the court, is there any possibility that Gonzales will uphold Roe? and (2) If not, will Justice Kennedy, the new swing vote on Roe, vote to maintain its basic provisions under precedent?
When it comes to Gonzales, conservative groups are desperate to avoid another Souter or O'Connor; that is, to avoid a Republican judge whose nomination is acceptable to moderate Democrats and who then goes on to actually decide cases in ways that are acceptable to moderate Democrats. The BBC reports that conservative groups are already warning Bush that they don't like Gonzales:
Last week, a delegation of conservative lawyers met the White House chief of staff to warn that appointing Mr Gonzales would divide conservatives, the New York Times reports.
Paul M Weyrich, chairman of the Free Congress Foundation, said he had told administration officials that nominating Mr Gonzales would divide the president's supporters.
...We would oppose him because we don't believe he has a philosophy that we can determine said Tom Minnery of the Conservative advocacy group Focus on the Family.
The conservatives who oppose Mr Gonzales' nomination say he is too moderate and that his views on issues such as abortion and affirmative action are not far enough to the right.
Sounds promising, but there are three big problems. The first is that these groups are so extreme that their distaste for a particicular candidate means little in a broader ideological scheme. (For instance, the Free Congress Foundation's manifesto is to stop America's "long slide into the cultural and moral decay of political correctness" that will render it "no less than a third world country".) Their distaste for Gonzales, though probably heartfelt, is a necessary but by no means sufficient condition for considering him.
The second problem is that conservative distrust of Gonzales rests largely on his rather small judicial paper trail, a product of the fact that he was only appointed to the Texas Supreme Court in 1999, then packed up for the White House in December of 2000. It's true that Gonzales did at one point join the majority opinion allowing a 17-year-old to have an abortion without parental consent, meeting the "mature and sufficiently well-informed" clause in a parental notification law Governor Bush had recently signed; but as Ryan Lizza has pointed out, this wasn't a ruling on parental notification, but a ruling on legislative intent, as Gonzales took pains to point out in his opinion.
And, of course, Gonzales is awful for all sorts of other reasons that have nothing to do with abortion. In addition to his famous disdain for the Geneva Conventions, his "death, organ failure, or serious impairment of body functions" definition of torture, and his more general lack of enthusiasm for habeas corpus rights, there's also the matter of his record as Texas Secretary of State, in which he actively helped Bush make the state first in the nation in executions by denying clemency rights. He was also blithely corrupt vis-a-vis campaign finance conflicts of interest during his time on the Texas bench, a subject that ought to get more attention before he heads of the Supreme Court. In short, his appointment would be a national embarrassment, even if he does turn out to be a relative moderate. That's a big price to pay for the mere possibility that he might not vote to overturn Roe, based on a single opinion that actually had nothing to do with Roe.
The third problem is that, if Bush replaces O'Connor with Gonzales -- a male who will be sold on the talking-head shows and considered by the public to be a "moderate" -- he'll then probably need to replace Rehnquist with a woman. The shortlist of female possibilities ain't pretty, but one of them is surely going to be nominated to the Court. Edith Hollin Jones claims to oppose judicial activism but has also called Roe an "an excercise in raw judicial power" and has attacked the Endangered Species Act in her opinions. Edith Brown Clement, who serves with Jones on the Fifth Circuit Court of Appeals, also looks like she harbours a fierce anti-Congress agenda (according to Rosen). And the nightmare scenario is that Bush tries to appoint one of his recent whackjob DC court appointments to the Top Job, either Justice Priscilla Owen or Justice Janice Rogers Brown, triggering the nuclear option in the process. On the other hand, if Bush replaces O'Connor rather than Rehnquist with one of these ladies (one of the first two), that could open the door for the appointment of Michael McConnell to replace Rehnquist, maybe even as Chief Justice. This terrific diary by a Kossack blogger makes the case that this could be a good thing, the sort of thing you might imagine from an "honest conservatism", if such a thing actually existed today.
The unpleasant fact is that neither Rehnquist nor O'Connor's replacement, whether or not it's Gonzales, McConnell or one of those firebreathing dames, is likely to vote to uphold Roe the next time a suitable case presents itself. In that case, the next logical question is, will Justice Kennedy take on that job? Kennedy has a history of voting with the conservatives on tangential abortion issues, and made his personal disgust with abortion known in his dissent in the 2000 Stenburg vs. Carhart partial-birth ruling. But he also joined the opinion of Souter and O'Connor in voting to uphold Roe in Casey vs. Planned Parenthood in 1992 [correction]. If Kennedy stays true to Casey, a post-O'Connor court might well be one that increases its hostility to abortion rights on issues like parental notification and tolerance for protesters outside clinics, but supports the basic provision under Roe and Doe -- that is the legal right to contract a first-trimester abortion under the "right to privacy" and to contract later-term abortions when certain conditions related to the mother's or fetus' health apply.
Or maybe not. According to a CNN report on the opening of Justice Blackman's records in 2004, Kennedy's vote in Casey was a last-minute defection from the Rehnquist-Scalia-Thomas-White anti-Roe position to a compromise position (granted, one that opened the door for lots of anti-abortion state initiatives), largely due to persuasion by O'Connor. And now she won't be there anymore to persuade him. Though public opinion polls don't show much systematic movement on abortion since 1992 (or since 1975 for that matter), America's hard right lobby is a hell of a lot stronger now. Kennedy himself is under constant lobbying, which has come to include cryptic threats from Republican senators, to Be a Goddamn Republican on this issue. How susceptable he is to that kind of indirect lobbying will almost surely depend on who's doing the talking in Supreme Court circles (and it's not comforting the Kennedy usually votes with the hardline righties on social issues like affirmative action). Even if O'Connor's replacement is an anti-Roe vote, how fervently anti-Roe it is may matter a lot in shaping Kennedy's willingness to swing. It may also determine how far the court goes on abortion, beyond just Roe itself. Cynthia Cooper (link above) argued some possible futures for Roe after the 2002 midterm:
A third scenario is the rollback and reversal of Roe. An anti-choice Bush nominee (replacing a moderate) could relegate Roe to the history books by providing the crucial fifth vote that determines there is no constitutional protection for abortion and overturns Roe.
A fourth scenario could be even more restrictive: the enshrinement of a fetal right to life. If an anti-abortion majority on the Supreme Court not only overturns Roe, but declares that life begins at conception or that a fetus has a constitutional right to life, abortion would be a crime in all states. Such a ruling would be the judicial equivalent of a "Human Life Amendment" to the U.S. Constitution that anti-abortion activists have tried, without success, to pass for years. [emphasis mine]
It's unlikely that Kennedy, who, despite his social conservativism is no Constitution in Exile hardliner -- having, for instance, joined with the liberal bloc to uphold (and some argue, expand) rights of eminent domain recently on the Kelo vs. New London decision -- would go that far. But how far things do go depends enormously on the voices replacing O'Connor and Rehnquist. A lot of well-meaning liberals argue that Roe is no good and should fall; that it was an indefensible legal decision and blocks a real political confrontation at the national level on the issue of a woman's right to choose. I have some sympathy with the argument (though no position on the legal legitimacy since I've never read the decision, only the commentary), but this sure as hell isn't the time for it. The intellectual dialogue in Washington over the "culture war" is abysmal right now, an endless parade of fever-swamp wingnuttery. Maybe, someday, it will improve. But until that happens, the court has to be a buffer against rampant and reckless rightwing stupidity...which means priority number one in these desperate times has to be figuring out the best way to keep it that way. It won't be easy.
Still, ending the era of Roe would mark a sea-change in American politics and would solidify the Bush presidency as the most radically rightwing in American history, which seems to be increasingly how Bush and Company wants it on domestic issues. And Roe is going to be at the heart of the O'Connor replacement battle. I'm no expert on SCUTUS stuff, so the following rhetorical questions are pretty basic. The questions are: (1) If the early media attention to Attorney General Alberto (Abu) Gonzales actually foreshadows his nomination to the court, is there any possibility that Gonzales will uphold Roe? and (2) If not, will Justice Kennedy, the new swing vote on Roe, vote to maintain its basic provisions under precedent?
When it comes to Gonzales, conservative groups are desperate to avoid another Souter or O'Connor; that is, to avoid a Republican judge whose nomination is acceptable to moderate Democrats and who then goes on to actually decide cases in ways that are acceptable to moderate Democrats. The BBC reports that conservative groups are already warning Bush that they don't like Gonzales:
Last week, a delegation of conservative lawyers met the White House chief of staff to warn that appointing Mr Gonzales would divide conservatives, the New York Times reports.
Paul M Weyrich, chairman of the Free Congress Foundation, said he had told administration officials that nominating Mr Gonzales would divide the president's supporters.
...We would oppose him because we don't believe he has a philosophy that we can determine said Tom Minnery of the Conservative advocacy group Focus on the Family.
The conservatives who oppose Mr Gonzales' nomination say he is too moderate and that his views on issues such as abortion and affirmative action are not far enough to the right.
Sounds promising, but there are three big problems. The first is that these groups are so extreme that their distaste for a particicular candidate means little in a broader ideological scheme. (For instance, the Free Congress Foundation's manifesto is to stop America's "long slide into the cultural and moral decay of political correctness" that will render it "no less than a third world country".) Their distaste for Gonzales, though probably heartfelt, is a necessary but by no means sufficient condition for considering him.
The second problem is that conservative distrust of Gonzales rests largely on his rather small judicial paper trail, a product of the fact that he was only appointed to the Texas Supreme Court in 1999, then packed up for the White House in December of 2000. It's true that Gonzales did at one point join the majority opinion allowing a 17-year-old to have an abortion without parental consent, meeting the "mature and sufficiently well-informed" clause in a parental notification law Governor Bush had recently signed; but as Ryan Lizza has pointed out, this wasn't a ruling on parental notification, but a ruling on legislative intent, as Gonzales took pains to point out in his opinion.
And, of course, Gonzales is awful for all sorts of other reasons that have nothing to do with abortion. In addition to his famous disdain for the Geneva Conventions, his "death, organ failure, or serious impairment of body functions" definition of torture, and his more general lack of enthusiasm for habeas corpus rights, there's also the matter of his record as Texas Secretary of State, in which he actively helped Bush make the state first in the nation in executions by denying clemency rights. He was also blithely corrupt vis-a-vis campaign finance conflicts of interest during his time on the Texas bench, a subject that ought to get more attention before he heads of the Supreme Court. In short, his appointment would be a national embarrassment, even if he does turn out to be a relative moderate. That's a big price to pay for the mere possibility that he might not vote to overturn Roe, based on a single opinion that actually had nothing to do with Roe.
The third problem is that, if Bush replaces O'Connor with Gonzales -- a male who will be sold on the talking-head shows and considered by the public to be a "moderate" -- he'll then probably need to replace Rehnquist with a woman. The shortlist of female possibilities ain't pretty, but one of them is surely going to be nominated to the Court. Edith Hollin Jones claims to oppose judicial activism but has also called Roe an "an excercise in raw judicial power" and has attacked the Endangered Species Act in her opinions. Edith Brown Clement, who serves with Jones on the Fifth Circuit Court of Appeals, also looks like she harbours a fierce anti-Congress agenda (according to Rosen). And the nightmare scenario is that Bush tries to appoint one of his recent whackjob DC court appointments to the Top Job, either Justice Priscilla Owen or Justice Janice Rogers Brown, triggering the nuclear option in the process. On the other hand, if Bush replaces O'Connor rather than Rehnquist with one of these ladies (one of the first two), that could open the door for the appointment of Michael McConnell to replace Rehnquist, maybe even as Chief Justice. This terrific diary by a Kossack blogger makes the case that this could be a good thing, the sort of thing you might imagine from an "honest conservatism", if such a thing actually existed today.
The unpleasant fact is that neither Rehnquist nor O'Connor's replacement, whether or not it's Gonzales, McConnell or one of those firebreathing dames, is likely to vote to uphold Roe the next time a suitable case presents itself. In that case, the next logical question is, will Justice Kennedy take on that job? Kennedy has a history of voting with the conservatives on tangential abortion issues, and made his personal disgust with abortion known in his dissent in the 2000 Stenburg vs. Carhart partial-birth ruling. But he also joined the opinion of Souter and O'Connor in voting to uphold Roe in Casey vs. Planned Parenthood in 1992 [correction]. If Kennedy stays true to Casey, a post-O'Connor court might well be one that increases its hostility to abortion rights on issues like parental notification and tolerance for protesters outside clinics, but supports the basic provision under Roe and Doe -- that is the legal right to contract a first-trimester abortion under the "right to privacy" and to contract later-term abortions when certain conditions related to the mother's or fetus' health apply.
Or maybe not. According to a CNN report on the opening of Justice Blackman's records in 2004, Kennedy's vote in Casey was a last-minute defection from the Rehnquist-Scalia-Thomas-White anti-Roe position to a compromise position (granted, one that opened the door for lots of anti-abortion state initiatives), largely due to persuasion by O'Connor. And now she won't be there anymore to persuade him. Though public opinion polls don't show much systematic movement on abortion since 1992 (or since 1975 for that matter), America's hard right lobby is a hell of a lot stronger now. Kennedy himself is under constant lobbying, which has come to include cryptic threats from Republican senators, to Be a Goddamn Republican on this issue. How susceptable he is to that kind of indirect lobbying will almost surely depend on who's doing the talking in Supreme Court circles (and it's not comforting the Kennedy usually votes with the hardline righties on social issues like affirmative action). Even if O'Connor's replacement is an anti-Roe vote, how fervently anti-Roe it is may matter a lot in shaping Kennedy's willingness to swing. It may also determine how far the court goes on abortion, beyond just Roe itself. Cynthia Cooper (link above) argued some possible futures for Roe after the 2002 midterm:
A third scenario is the rollback and reversal of Roe. An anti-choice Bush nominee (replacing a moderate) could relegate Roe to the history books by providing the crucial fifth vote that determines there is no constitutional protection for abortion and overturns Roe.
A fourth scenario could be even more restrictive: the enshrinement of a fetal right to life. If an anti-abortion majority on the Supreme Court not only overturns Roe, but declares that life begins at conception or that a fetus has a constitutional right to life, abortion would be a crime in all states. Such a ruling would be the judicial equivalent of a "Human Life Amendment" to the U.S. Constitution that anti-abortion activists have tried, without success, to pass for years. [emphasis mine]
It's unlikely that Kennedy, who, despite his social conservativism is no Constitution in Exile hardliner -- having, for instance, joined with the liberal bloc to uphold (and some argue, expand) rights of eminent domain recently on the Kelo vs. New London decision -- would go that far. But how far things do go depends enormously on the voices replacing O'Connor and Rehnquist. A lot of well-meaning liberals argue that Roe is no good and should fall; that it was an indefensible legal decision and blocks a real political confrontation at the national level on the issue of a woman's right to choose. I have some sympathy with the argument (though no position on the legal legitimacy since I've never read the decision, only the commentary), but this sure as hell isn't the time for it. The intellectual dialogue in Washington over the "culture war" is abysmal right now, an endless parade of fever-swamp wingnuttery. Maybe, someday, it will improve. But until that happens, the court has to be a buffer against rampant and reckless rightwing stupidity...which means priority number one in these desperate times has to be figuring out the best way to keep it that way. It won't be easy.
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