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The War on Roe

[ 33 ] July 31, 2012 |

I have a piece up on the two awful recent decisions in federal courts that uncritically accept anti-abortion junk science. One court at least made the same kind of mistakes as Casey and Carhart II, while the other judge just decided to flat-out ignore that he was dealing with a rare case where Casey actually imposes a clear requirement.

By the way, that latter judge was a Clinton nominee. I’ll get to this eventually, but let’s just say that I continue to find Sean Wilentz’s “Clinton was as liberal as he possible could have been” narrative…unconvincing.

Comments (33)

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  1. Cody says:

    Access to your link was denied. Obviously their Progressive meter on Prospect has caught onto my ruse.

  2. Glenn says:

    Not that I disagree with your point about Clinton overall, but in fairness, district court judges are usually more or less picked by the Senators from that state if of the same party as the President, and there’s typically been an accommodation to allow some picks by the other party as well (if one or both of the Senators is from the other party). I believe Teilborg was a Kyl recommendation.

    • Scott Lemieux says:

      Fair, although Clinton did have a problem with not taking judicial appointments seriously enough.

      • James E. Powell says:

        It wasn’t just Clinton, it was the whole team.

        Republicans are and have been for years unified and focused on the task of appointing judges & justices with a particular ideological approach. The Democrats take a different approach.

        It’s part of one of the great big differences between the parties. The Republicans are on a mission and they stay on it no matter what happens. Look at their rebound from getting wiped out in 2006 & 2008. No change in policies or arguments, no ‘move to the center’ or any other form of moderation.

        • Murc says:

          The Republicans these days operate by taking two strategic principles as givens. The first is that, as Schlesinger said, politics (not necessarily policy, but politics) is a pendulum. The second, which is really a corollary to the first, is that it doesn’t matter if their policies lead to electoral losses, because they can get back in in a cycle or two and continue the work.

          What terrifies me is that both of those principles, so far, seem to actually be true. I know that backlashes happen and that realignments, when they come, come fast and hard, but I’ve been genuinely frightened these past few years. One of the underlying theories of having an effective republic is that failures of governance will lead to political and policy consequences, but that doesn’t appear to be the case anymore. The Republican plan seems to be to crash the country as hard to the right as they can while in power, then prevent anyone from undoing their changes using countermajoritarian veto points when out, then coming back in and continuing the ratchet.

          And it seems to be working. There are better then even odds this time next year we’ll be in the middle of the second Bush administration. And even if that craters after one term, they’ll be back again, without having made any changes to make them a legitimate governing party rather than a pack of vandals, in 2020 or 2024. Because why should they, if they can keep getting back into power without doing so?

          This is not a sustainable way to run a country.

          • David M. Nieporent says:

            One of the underlying theories of having an effective republic is that failures of governance will lead to political and policy consequences, but that doesn’t appear to be the case anymore.

            True. The New Deal and Great Society still haven’t been dismantled. In fact, they’ve strangely been expanded. By the Republicans supposedly “crashing the country hard to the right.” With things like Medicare Part D and NCLB.

            • Murc says:

              Eh? I’m confused. The New Deal and Great Society are shining successes of governance. Why would they be dismantled in a properly-working system?

              NCLB was and is an unworkable catastrophe, but, you are correct, it did have broad bipartisan support.

              Medicare Part D, half and half. It was an ostensible expansion of the welfare state, but it was structured badly (a hallmark of conservative legislation) and it wasn’t paid for (a second hallmark of conservative legislation.) Liberals typically like to actually pay for the things we do; we’re tax-and-spenders.

  3. Holden Pattern says:

    By the way, that latter judge was a Clinton nominee. I’ll get to this eventually, but let’s just say that I continue to find Sean Wilentz’s “Clinton was as liberal as he possible could have been” narrative…unconvincing.

    Obama, on the other hand, is absolutely as liberal as he possibly could be. Truly, we each of us live in the best of all possible worlds.

    • Scott Lemieux says:

      I hope you invested in straw futures! You and Wilentz could open a business together.

      • Holden Pattern says:

        Yes, there’s been absolutely no shouting down and constant mockery of anyone who quibbles with the dogma of “Preznit completely constrained by Senator Number 41, except in foreign policy/use of the military, where Obama has been as liberal as any other preznit would be under the circumstances”.

        • Scott Lemieux says:

          [cites of anyone arguing that Obama has been as liberal as possible still omitted. Fury that anyone would dare to disagree with Holden Patten on the merits noted.]

          • ask says:

            So where could Obama been more liberal? In what ways could have Clinton been more liberal?
            What was different about their non-liberalness? When is the big follow up post coming?

        • Murc says:

          Yes, there’s been absolutely no shouting down and constant mockery of anyone who quibbles with the dogma of “Preznit completely constrained by Senator Number 41

          Speaking for myself, I shout down people who challenge that because so far they haven’t done so effectively. If a President has no leverage over Senator #41, then he is in fact completely constrained by said Senator. Given that in most cases Senator #41 will have a completely independent fundraising apparatus, a completely independent primary-winning apparatus, and will not care about the President being displeased with him, up to and including not caring if the President were to publicly denounce him, the lack of leverage would seem to be obvious. You, and others, have never explained why that isn’t the case.

          except in foreign policy/use of the military, where Obama has been as liberal as any other preznit would be under the circumstances”

          Who has said this? I don’t believe any of our hosts have, and they’d have been wrong if they did.

          • Anonymous says:

            Shouting down is what you do when you can’t sell your ideas.

            • Murc says:

              Or when you’re arguing with people who are catastrophically wrong.

              I shout at Holden and others about this because, well, they’re wrong. And I’m going to keep shouting that until they convince me to do otherwise, which they try often to do but so far have failed at.

          • r. clayton says:

            If a President has no leverage over Senator #41, then he is in fact completely constrained by said Senator.

            This strikes me as a tendentious way to state the problem. It seems more accurate and helpful to start with “If a President has no leverage over any of the 41 remaining senators…” This phrasing opens up space around the usual stultifying political considerations, allowing such possibilities as: “then perhaps the President (or executive office) is incompetent, or has too much respect for the separation of powers, or…”

  4. avoidswork says:

    Naturally, states omitted on my revised USA map…

    The misinformation/lying is the genuine kicker. I sincerely hope as the HC providers are lying to their patients, they are equally holding up a sign to the effect of “not a factual statement but mandated by the Courts for me to lie to you”.

    • Murc says:

      I’d actually be interested in the outcome of a court case in which a doctor did that. I know that things like medical licensing are controlled by the state, but can a state actually make going against the consensus of your profession a requirement to practice your profession?

      I ask in a purely technical, legal sense. Could a state board mandate that all architects must affirm that, say, pi is equal to three in order to allow them to practice their trade? Obviously that would be idiotic, but could they do it?

      • Cody says:

        This sounds like a huge overreach of government. Surely those Tea Party people are going to be all over this!

      • avoidswork says:

        What the State Board could argue is that pi is equal to three (*rounding). So it’s not wholly untrue in the context of how one evaluates numbers/rounding, but the informed Architects/Engineers should read between the lines.

        Even better, the 8th Circ. used bad peer journal articles (bad in the sense of errors and unrepeatable data) to shift the burden to the “prove that it doesn’t” standard.

        • Barry says:

          “Even better, the 8th Circ. used bad peer journal articles (bad in the sense of errors and unrepeatable data) to shift the burden to the “prove that it doesn’t” standard.”

          And since (IIRC), there is actual law and precedent on ‘junk science’, this isn’t an accident.

    • DocAmazing says:

      If you don’t mind getting your ass fired and leaving your patients at the mercy of the next physician-equivalent who is hired to carry out the policy pending the judge’s ruling, then yeah, the doc in question can tell the patient that the next sentence out of his/her mouth will be a governmentally-required lie.

  5. brewmn says:

    I’d be alot more comfortable with all of the lefty criticism of Obama, if so many of those critics didn’t rely on making the claim that Bill Clinton was a liberal icon by comparison. IMO, both are neoliberal sellouts, while Obama has been more successful at getting quasi-liberal legislation passed.

    Until lefties can convince me that there is a progressive groundswell in the American electorate that is just waiting for the right set of policies to burst it open, I’m going to remain convinced that both presidents were as liberal as circumstances allowed, and reserve my hatred for the center-right establishmentarians and the beyond-redemption Republicans.

    • Cody says:

      I agree. I like Bill Clinton, but I feel he was working with a more Moderate government than Obama. Even in those conditions, he was more to the right than Obama (on economic issues, at least).

      Overall, I think Obama is a fine “Left” President. Not a great one by any stretch, but I can’t really think of anyone doing better that would get elected.

    • mixed says:

      Clinton (and those first termers who took one for the team) deserve a tremendous amount of credit for raising marginal rates. He should also get some credit for balancing the budget.
      The 2000 election led to the undoing of all of the positives however and the 2008 collapse highlighted many of the negatives of the Clinton years.

  6. Sly says:

    By the way, that latter judge was a Clinton nominee.

    Two points:

    1) There’s generally less scrutiny from the Oval Office when it comes to District Judges, basically taking recommendations from the Senators of the state in which that District Court is found. You might say that Republican Presidents do not follow this rule, to which I would respond that the latest judge to declare Section 3 of DOMA unconstitutional was a Dubya appointee to the District Court of Connecticut.

    2) Ginsberg and Breyer more than make up for the small number of psychopaths that were put on District Court benches by Clinton.

    • Sly says:

      As an addendum, the Senate as a body takes District Court nominations just as seriously as the President (i.e. not very seriously). Teilborg was recommended to Clinton by Jon Kyle and was confirmed in 2000 by a recorded vote of 95-0, with 5 Senators not voting. Bryant (the judge in the above cited DOMA case) was recommended to Bush by Joe Lieberman and was confirmed in 2007 by a voice vote (in other words, by unanimous consent, because if anyone voted no they would have demanded a recorded vote).

      So we’re basically talking about politically connected state judges/lawyers getting a favor from their Senator, and acting surprised that a man recommended by a shithead like Jon Kyle is himself also a shithead.

  7. Joe says:

    The creative use of “regulate” by the judge here should be resisted by Republicans given their position on the Commerce Clause, though that assumes the silly idea they are consistent.

    [Scalia/Thomas left open the idea that the feds can't ban a single procedure via the CC, which is about as useful as Bush saying -- given a perfect world -- he wouldn't want to invade Iraq.]

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