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Romney v. Roe

[ 45 ] August 30, 2012 |

Mitt Romney needed to distance himself from the Republican Senate candidates who have been explicit about the misogyny opponents of legal abortion are supposed to leave latent, babbling nonsense about how women can’t get pregnant from “legitimate rape” and comparing being raped to having sex outside of marriage. So Romney did what he does best: coming up with a another evasion on abortion. Earlier this week, he asserted that the issue of abortion has “been settled for some time in the courts” and “the decision that will be made by the Supreme Court.” This is a classic strategy for politicians who need to finesse the issue — argue that because the courts have issued a ruling the matter is now out of the hands of elected officials.

The problem is, as Sarah Kliff and Irin Carmon point out, that this isn’t actually true. The next president will have a potentially large impact on abortion policy, beginning with (but not limited to) the possible opportunity to replace one of the 5 pro-Roe justices on the Supreme Court. Of these 5 votes, 3 have to be considered candidates to retire in the next four years: the 76-year-old Anthony Kennedy, the 74-year-old Stephen Breyer, and Ruth Bader Ginsburg, a 79-year-old cancer survivor. This makes it very likely that the fate of Roe hangs in the balance of the 2012 elections.

Some people may see predictions that Roe will be overturned, however, as having a “boy who cried wolf” quality. After all, a majority of the justices on the Supreme Court have been appointed by conservative Republicans for more than two decades, and yet Roe is still standing (albeit in weaker form.) Overturning a popular precedent would have political downsides for the Republican Party. So would Romney actually nominate an anti-Roe justice?

Almost certainly yes, for two reasons. First of all, the survival of Roe was not the result of Republican calculation but was highly contingent. Had Ronald Reagan nominated Robert Bork and Antonin Scalia in reverse order, Bork would have been confirmed by a Republican Senate and Roe would have been overruled by 1992. George H.W. Bush’s nomination of David Souter reflects the relative lack of priority the former put on the abortion issue, but Souter certainly wasn’t nominated because he supported reproductive rights; Bush could have just as easily nominated a candidate with relatively unknown views who turned out to be anti-Roe. A lot of luck has been involved in maintaining Roe, and it would be unwise to assume that this will continue.

And secondly, conservatism has changed. Mitt Romney will not be permitted to be as indifferent about a Supreme Court justice’s position on Roe as George H.W. Bush was. (David Souter’s moderation insured that it will be a long time before a Republican president appoints someone similar.) And while a justice who explicitly opposed Roe would be vulnerable to a Democratic Senate like Bork was, a generic Republican appellate court nominee is substantially more likely to favor overruling Roe than a generic Republican nominee 20 or 30 years ago would be. Even if Mitt Romney wanted an otherwise conservative pro-Roe justice, he wouldn’t have many options — and there’s no reason to believe he would want do that.

In addition, as Carmon correctly points out given the cases currently percolating in lower courts a conservative court could do substantial additional damage to the reproductive freedom of American women without announcing the overruling of Roe v. Wade. Abortion law, in other words, is not “settled” in any sense, and this should be a major issue in the 2012 election.

Comments (45)

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  1. rea says:

    They nominated Souter because he didn’t have a record on abortion rights, and told him to keep his mouth shut on the issue until confirmed. Their expectation was that, as a conservative, Souter would vote to overturn Roe. Problem was, he really was an conservative, and not a right wing radical.

  2. mpowell says:

    Well argued, except anyone who thinks Roe is safe is either extremely ignorant of American politics over the last 15 years or a complete moron. Not to say we haven’t seen people suggest that kind of thing around here…

    • Reasonable Person says:

      Oh, good LAWD!!

      SCOTUS has ruled it’s a constitutional right. To have anything different there would have to be either a new ruling from the SCOTUS on this very issue or an constitutional amendment.

      Neither are likely in your lifetime.

      This looks more like you’re needing to create some boogyman to rail against.

      There’s a windmill over there. Why not tilt at it?

      • sharculese says:

        Not that I don’t think Roe could be overturned, but it’s not necessary for the Court to explicitly overturn it to effectively outlaw abortion.

        All they have to do is keep rubber stamping anti-choice restrictions to the point where it’s not a realistic option.

        Which the forced birthers have been pretty successful in doing already, abetted by dupes who insist that talking about threats to the right to choose is just scaremongering.

        • sharculese says:

          Yes I know I’m arguing with a fakeposting troll, but I felt it needed to be said anyway.

        • Reasonable Person says:

          It’s one thing to say that the government cannot outlaw abortion. It’s quite another to say that taxpayers have to fund it.

          Guns are an explicit right and yet no one’s whining about the poor not having access to guns.

          Funny, that…

          • Malaclypse says:

            I thought you wanted us to talk only about JOBS and THE ECONOMY, Jennie dear?

            • Stinky McGee says:

              OK….

              Let’s talk about the economy…in the toilet.

              And when Obama had all the levers of government, the Senate, the House and, of course, his presidency…he didn’t do all the things he now whines that the Republicans are stopping him from doing now.

              If they were so important, why wasn’t he interested then?

              And how can he complain about hit now?

              What’s with that??

        • Barry says:

          That’s what I would expect. Cut, cut cut. Or more accurately, support the various state laws doing the cutting. Given a few years, and not much would be left.

      • rea says:

        SCOTUS has ruled it’s a constitutional right. To have anything different there would have to be either a new ruling from the SCOTUS on this very issue or an constitutional amendment.

        Neither are likely in your lifetime.

        With all due respect, you don’t know what you are talking about.

  3. liberal says:

    I’ve said it before in blogosphere comments, and I’ll say it again: why the hell didn’t Ginsburg resign shortly after Obama took office?

    • mpowell says:

      I assume the answer is ego. It’s not just a problem on the political right.

    • David Kaib says:

      Justices don’t generally do that, although I’ve often heard people claim they do (I lost count of the number of people who insisted to me that a rash of conservative retirements was going to come if Bush won in 2000). Part of the issue is that it would appear heavily politically motivated. That’s not enough to prevent people from doing a lot of things, but it doesn’t mean it doesn’t matter at all either.

      It’s also likely that most justices (especially those on the left leaning side) fear that any replacement will be weaker than they are. IIRC, Stevens insisted that every justice since he took his seat was more conservative than the one he or she replaced. Sotomayor may be the exception.

      • Scott Lemieux says:

        And, of course, Ginsburg was more liberal than White. Breyer was more conservative than late Blackmun and more liberal than early Blackmun.

        • David Kaib says:

          True. Clearly I haven’t had enough coffee today if I forgot about the Ginsburg-White comparison.

          IIRC Ginsburg has said that someone who had worked for the ACLU like herself would not have a shot at the Court today.

      • liberal says:

        It’s also likely that most justices (especially those on the left leaning side) fear that any replacement will be weaker than they are.

        It’s plausible that Obama would appoint someone somewhat to the right of Ginsburg. But in my own calculus that’s far outweighed by the risk taken that Obama loses 2012 and she leaves the court before 2016.

        Sotomayor may be the exception.

        I like Sotomayor as a justice, just on her merits. But I don’t think she should have been picked; she’s not old, but she is a Type 1 diabetic who smokes. Would have been much better to pick someone young and very healthy.

        • Josh G. says:

          I like Sotomayor as a justice, just on her merits. But I don’t think she should have been picked; she’s not old, but she is a Type 1 diabetic who smokes. Would have been much better to pick someone young and very healthy.

          The fact that it requires this kind of ghoulish calculus is one reason why life tenure on the Supreme Court is such a bad idea. In any other context, evaluating a prospective employee in such a fashion would be an ADA violation.

          • Scott Lemieux says:

            These issues are incredibly overblown anyway. The odds that the difference between nominating a smoker and nonsmoker to the job will result in a partisan shift are too low to really merit consideration, particularly if the tradeoff involves someone who’s worse on the merits.

            • liberal says:

              The odds that the difference between nominating a smoker and nonsmoker to the job will result in a partisan shift are too low to really merit consideration…

              Uh, I did mention that she’s a Type I diabetic.

      • Ed says:

        It’s also likely that most justices (especially those on the left leaning side) fear that any replacement will be weaker than they are.

        Ginsburg in particular would have reasons for thinking that way. She’d be right, too. Long may she wave.

      • mpowell says:

        Are you kidding? O’Connor stole the election from Gore just so she could be replaced by Bush. Now, she didn’t retire immediately, but I don’t see how there’s much real difference there.

  4. Brian says:

    Other side of the coin…Scalia and Thomas were both born in 1936, and both are significantly overweight. While I am aware of no major health problems for either, both are at relatively high risk. Should either or both leave the bench, and Ginsburg retire, and Obama be reelected, he could give us a progressive Court for years.

    • DocAmazing says:

      stay away from the creme brulee

    • John (not McCain) says:

      Not just overweight, but bitter, angry cranks as well. They are well overdue for a Breitbart moment.

    • liberal says:

      I’d say relatively progressive court.

      While the claim “there’s not a dime worth of difference between the parties” is clearly false, it’s also false that the Dems take clearly progressive positions across the board. Same thing for the liberal SC justices. I haven’t done a thorough sorting by issue class myself, but my impression is that they’re not tremendously liberal on issues affecting business.

      Not saying a not-fully-liberal court isn’t worth fighting for, and so forth.

    • “Should either or both leave the bench, and Ginsburg retire, and Obama be reelected, he could give us a progressive Court for years.”

      That’s true, but it hardly makes 2012 exceptional. Yes, there are a lot of old justices, but that was true in 2008, 2004, and 2000 as well. Just like then, the upcoming presidential term could see anywhere from zero to four appointments, but there’s no way to confidently narrow it down one way or the other.

  5. It isn’t even a question of Supreme Court appointments: taking Mittens at his word on the question of reproductive rights is as doubtful a proposition as taking his word on anything else. Who do you think he will appoint to Health & Human Services, e.g.?

  6. angry bitter drunk says:

    I still think the Republicans don’t really want to repeal Roe. They need to keep the fundies hot and bothered by its presence. Of course they’ll continue to do everything possible to chip away at it at the state level…

  7. Anonymous says:

    You think we push the Roe stuff because our leadership REALLY wants to ban abortion? No, it’s to get out the Jesus freak vote who would otherwise stay home. Nothing but an easy troll.

  8. tomstickler says:

    The serious attack on abortion rights began when the 1980 Republican platform called for federal judges to be screened on ideological grounds. The Reagan administration inaugurated an unprecedented vetting of candidates for the Federal judiciary with the Office of Legal Policy.

    A special Committee on Federal Judicial Selection met Thursdays in the White House Roosevelt Room. Grover Rees III was a member of that committee by 1985. No candidate’s name was sent to the White House before passing by him.

    Back in 1979 Rees had written a cover article for the National Review titled “The True Confessions of One One-issue Voter.” In 1982 he wrote, “If the Constitution were interpreted the way I believe it should be interpreted, states could have anti-abortion laws [and] prayer would be endemic in the [public] schools.”

    Most candidates for SCOTUS come from the lower courts, where Republicans have been confirming ideologues for over thirty years.

  9. [...] the fact that if you look carefully Romney’s alleged “moderation” on abortion was completely meaningless; it wouldn’t contradict his statements for him to sign legislation restricting abortion or to [...]

  10. [...] to anti-choice fanatics while leaving the general public in the dark. Ask yourself why Romney argues that abortion has “been settled by the courts.” And why the Romney campaign sends Norm [...]

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