The Non-radicalism of Daine Wood’s Abortion Jurisprudence, Part II
In comments, Ed Whelan urges us to consider his response to the Emily Bazelon article I linked earlier. If there’s supposed to be some sort of devastating response to Bazelon there, though, I must confess that I can’t find it. Most of his response concerns Wood’s rulings in N.O.W v. Scheidler, but he seems to do little but reiterate his normative disagreement with Bazelon and Wood (as opposed to identifying any empirical errors.) It is true that Wood’s initial ruling was reversed by the Supreme Court, but (particularly in light if of the Supreme Court’s previous holding that RICO prosecutions do not require an economic motive) Bazelon’s argument that Wood’s interpretation of the relevant RICO statutes was perfectly plausible remains true. Similarly, Whelan doesn’t address the key point of Bazelon’s defense of Wood’s opinion applying the Court’s 1996 ruling — that Wood’s opinion remanding the case to a lower court was a narrow and cautious one that was unlikely to result in a successful prosecution. The Supreme Court then removed any ambiguity and the prosecutions did not proceed. I don’t see any abuse of power on Wood’s part here.
Aside from this, the rest of Whelan’s argument basically amounts to “so’s your old man”:
Bazelon also attempts to defend Wood’s votes, in dissent, to strike down state laws banning partial-birth abortion and to strike down an informed-consent law that was in all material respects identical to the law upheld by the Supreme Court in Planned Parenthood v. Casey…*I’m certainly not going to defend the coherence or clarity of the “undue burden” standard that the Court concocted in Planned Parenthood v. Casey. But it’s precisely because Wood consistently deployed that standard, in dissent, to pro-abortion ends (and because of her NOW v. Scheidler hijinx) that I’m entirely justified in stating that I’m aware of no judge in the country who is more extreme than Wood on abortion. Nothing Bazelon says bears on that judgment, much less refutes it.
If we re-state the last point in a less tendentious manner — “Diane Wood is likely to resolve legal ambiguities in favor of reproductive rights” — Whelan’s argument is true but trivial, since the same can be said of any potential Democratic nominee. The argument has bite only if Whelan shows that Wood in some way distorted the law in order to achieve a pro-choice end, and he fails to do so. For obvious reasons, he doesn’t even attempt to defend the proposition that her position (shared by Richard Posner and later by a majority of the Supreme Court) that bans on D&X abortions were unconstitutional under Casey is an “extreme” position. With respect to her vote to strike down an informed consent law, while it’s true that Casey struck down a materially similar provision, as Bazelon points out it did so on the basis that such laws could not be “considered a substantial obstacle to obtaining an abortion.” In light of new evidence suggesting that such laws did present a substantial obstacle, it is not necessarily unfaithful to Casey to evaluate a similar legislative provision differently. As Wood argued in her dissent, the Court in Casey expressly limited its holding to to current facts, implying that evidence that waiting period requirements could constitute an undue burden if they obstructed women from obtaining abortions. I invite you to read her dissent in full — you won’t find anything there that is unreasonable or ignores a direct directive of the Supreme Court.
In other words, what we have here is a simple normative disagreement — Bazelon (like me) thinks that Wood’s (mainstream liberal) belief that a woman’s constitutional right to reproductive freedom should be taken seriously is salutary; Whelan disagrees. And from his own perspective he’s correct to oppose Wood’s nomination, but he completely fails to establish that any of Wood’s abortion jurisprudence is radical or indefensible.
Remember how Sonia Sotomayor was going to make “international law” the law of the United States? That was the wingnut argument last time around. We’re just getting a preview of this times version.
Anyone Obama nominates to the left of Orrin Hatch will get this treatment. It’s certainly worth refuting (even if it is shooting fish in a barrel) but we shouldn’t be surprised. And though Wood is an authentic liberal (or at least as close to one as Obama is likely to consider for the SCOTUS), we should also be careful not to interpret the wingnuts’ treating, e.g., Elana Kagan this way as evidence that she is liberal.
The right of course sees the Stevens retirement as another opportunity to secure the 5 votes necessary to overturn Roe and Casey. To that end, an attempt will be made to prevent Obama from filling the seat before 2013.
Rea, if that is the position of the right, what type of nominee should members of the non-right pursue?
It doesn’t matter–doubt they’d take even our unconditional surrender.
As Stevens himself has pointed out, every single appointee to the current court with the exception of Ruth Bader Ginsburg moved the court further to the right.
Though the desires of the right are clear, the bigger problem is the likelihood that Obama himself sees this as an opportunity to move the court further to the right.
the likelihood that Obama himself sees this as an opportunity to move the court further to the right.
That’s pretty silly, frankly.
Scott: What you call the “key point” of Bazelon’s defense of Wood on remand in NOW v. Scheidler (from the Supreme Court’s ruling in 2003, not, as you say, 1996) is in fact just one of her subsidiary arguments in support of her broader claim that Wood merely “made the wrong prediction in a hard case” and that she didn’t defy the Court’s mandate. Having refuted this broader claim of Bazelon’s (in arguments that you don’t contest), I hardly thought it necessary to respond to each particular.
As for this supposed “key point”: Wood is not the first miscreant to attempt to camouflage and minimize her wrongdoing. If the Supreme Court had thought Wood’s course of action reasonable in extending the 17-year-long litigation that it thought it had ended, it surely would not have granted interlocutory review of her ruling (it would instead have let the district court, on remand from Wood, proceed to final judgment and let the final judgment work its way back through the system); it surely would not have granted review on the specific question whether Wood “improperly regarded this Court’s mandate … by holding that the injunction issued by the District Court might not need to be vacated”; and, beyond reversing Wood unanimously, it surely would have seen no reason to go out of its way to prevent further mischief by Wood by specifically directing that “the cases are remanded for entry of judgment for petitioners.” To say, as you do, that the Supreme Court merely “removed any ambiguity” is an utterly implausible whitewashing of what happened.
Your use of “miscreant” gives the game away. If Wood is an evildoer, an infidel, a heretic, then we’ve gone past the point of logical disagreement and into religious ideology. Perhaps we could save a little time here:
You: “Wood, like all abortion rights supporters, is evil.”
Me: “No she’s not.”
I acknowledge my error. I thought that the term “miscreant” had a much milder meaning of “wrongdoer” (and I was trying to avoid redundancy), but I see that I am mistaken.
My apologies as well, I should have made clear, for inadvertently using a term that conveys a far harsher meaning than I intended.
I will concede one point: I think Bazelon’s “wrong prediction in a tough case” formulation is not really applicable to the second case, although I think it would be to the first. The Supreme Court’s subsequent reversal could not be considered surprising. I do not, however, think that the point about the narrowness of the ruling is “subsidiary”; given the implication that Wood was acting lawlessly, the fact that her second ruling had essentially no chance of producing the outcome she was allegedly trying to obtain is surely relevant. And the narrowness of the opinion also meant that she was not ignoring a specific holding of the Supreme Court.
If the argument is that Wood would not have given the same relatively lenient construction of a criminal statute in a non-abortion case, this is a fair point. But of course this cuts both ways: it is highly unlikely that most conservatives would attack a judge for interpreting ambiguities in the state’s favor in anything but an abortion case.
Or to put it another way, given a new theory for prosecution that is inconsistent with the spirit but not the letter of the Supreme Court’s holding, it is a reasonable view of her role for Wood to leave it to the Supreme Court to close its own loophole. Nothing in the tone of Wood’s second opinion suggests that the new theory was likely to hold up, and if this narrowness was “camouflage” for instrumental goals I’m not sure what they could be, given the odds of success at the Supreme Court.
Scott:
It isn’t the case that Wood’s “second ruling had essentially no chance of producing the outcome she was allegedly trying to obtain.” Wood did say (in response to a petition for rehearing and rehearing en banc—when the matter had gotten her full court’s attention—not in her initial order on remand) that “it appears that it would be an abuse of discretion for the district court to re-enter any nationwide injunction based only on the four remaining acts of violence found by the jury” (emphasis added). But she left entirely open that a lesser injunction might be appropriate.
Also, the concern isn’t that Wood was “ignoring a specific holding” of the Court but that she was disregarding its mandate (its directive on how to dispose of the case on remand) in its 2003 ruling.
(Wood’s opinion on rehearing, which sets forth her previous order on remand, is available here: http://caselaw.lp.findlaw.com/data2/circs/7th/993076pv4.pdf.)