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The "Maximizing Abortion Rates" Gambit

[ 0 ] November 13, 2006 |

Amy Sullivan’s recent article celebrating anti-choice Colorado SenatorGovernor-elect Bill Ritter makes some arguments that allow me to clarify some of my difficulties with “centrist” arguments about abortion. First of all, there’s this:

Early in the 2004 campaign, John Kerry caused an uproar among pro-choice supporters when he told an Iowa newspaper that he believed life begins at conception. But, at the same time, he lost pro-life support when a handful of conservative bishops suggested he be denied communion because of his history of voting against abortion restrictions. And his abortion answer during the second presidential debate didn’t make anyone happy. George W. Bush found it easy to shoot down Kerry’s version of the Mario Cuomo I’m-personally-opposed-but-can’t-do-anything-about-it-as-an-elected-official formulation, immediately replying: “I’m trying to decipher that.”

Well, there’s one person who was happy about Kerry’s squishy response: Amy Sullivan. Is she now saying that this isn’t an effective way of discussing the issue? At any rate, what’s more frustrating is the double standard at work. George Bush’s “position” on abortion–which seemed to consist of platitudes about “the culture of life,” babbling about Supreme Court decisions concerning slavery he didn’t understand, and ignoring the Republican platform’s position on abortion entirely–is considerably less coherent than Kerry’s, but somehow abortion centrists rarely find his arguments hard to decipher.

But this is a minor point. The bigger problem is, again, vagueness about what an abortion compromise should look like. Sullivan says that “Ritter has successfully taken abortion off the table. He has illustrated how people who answer to the labels “pro-life” and “pro-choice” can still reach agreement on the value of reducing abortion rates through prevention of unintended pregnancies and not by locking up doctors and women.” All well and good, but the problem is that the assiduous strawman-building of many pundits and anti-choicers aside the position that abortion should not be criminalized but policies that reduce abortion rates (such as access to contraception, rational sex education, child care, etc.) should be instituted is the pro-choice position. If the compromise to be reached with pro-lifers is simply that the pro-choicers win, fine with me. But obviously it’s more complicated than that. Here’s where the harder issues come in:

This head-on approach is different than that of many older Catholic Democratic politicians, who privately share Ritter’s views but have publicly adopted the pro-choice mantle. These Catholic Democrats aren’t worried that expressing pro-life views would cost them votes–in fact, a majority of Americans (62 percent) believe that there should be some restrictions on abortion short of outlawing it completely. But they do fear losing dollars from pro-choice donors and PACs.

A new generation of Catholic Democrats–which, in addition to Ritter, includes Virginia Governor Tim Kaine, Pennsylvania Senate candidate Bob Casey, and Representative Tim Ryan of Ohio–disdains this political tip-toeing and wants to tap into the pro-restriction voters, 56 percent of whom supported Bush in 2004. They are standing up to both their church and their party by supporting birth control and insisting on a lower abortion rate. And they are putting substance behind this position. In September, Ryan introduced legislation in the House that includes a combination of prevention measures–funding for teen pregnancy prevention programs, improved access to contraception–and support for women who want to have their babies.

OK, first of all, the boldfaced portion drives me crazy. Nobody is “bucking” the Democratic Party by attempting to lower abortion rates per se, and it’s simply dishonest to say otherwise. Sullivan should name the names of the prominent Democrats or pro-choice activists who think that obtaining abortions is inherently preferable to preventing unwanted pregnancies, or she should stop saying it. But the kicker comes in her discussion of “restrictions on abortion short of outlawing it completely.” Since Sullivan, as she often does, invokes public opinion rather than advancing the normative position herself, it’s not clear what, if any, such restrictions she supports. But it’s these kinds of regulations where the conflicts that Sullivan is trying to paper over become manifest. From a progressive standpoint, there’s a huge difference between measures that prevent unwanted pregnancy by enhancing the freedom of poor women–which we can all support–and state coercion that, while leaving abortion access essentially unfettered for women similarly situated to Amy Sullivan, has much more dire consequences for abortion access for poor women who don’t live in major urban centers. Productive discussion of abortion compromises can’t simply conflate all methods of reducing abortion rates short of bans, which ignores very important questions. On providing access to birth control, a compromise is available; when it comes to regulations that make it difficult for abortion clinics to stay open, that’s where I get off the bus. And until Sullivan makes it clear what exactly she’s advocating, it’s difficult for a conversation to proceed.

Republican History Lesson

[ 0 ] November 13, 2006 |

A commenter in this thread says that recess appointments can’t be used for the federal bench; actually, they can. This seems like a good time to remember that President Clinton used a recess appointment to appoint Roger Gregory, because Jesse Helms otherwise refused to allow an African-American judge to sit on 4CA:

On Dec. 27, in a bold move, Clinton took advantage of a congressional recess to appoint an African American to the most conservative court in the federal appellate judiciary. This was the first time in 20 years that a president has filled a judicial opening with a recess appointment, which allows him to seat a candidate while Congress is out of session.

“It is unconscionable that the 4th Circuit has never had an African American appellate judge,” Clinton said during his announcement. “It is long past time to right that wrong. Justice may be blind, but we all know that diversity in the courts, as in all aspects of society, sharpens our vision and makes us a stronger nation.”

Gregory, a 47-year-old Richmond corporate attorney, finds himself in the middle of a high-stakes political confrontation between Clinton and his senate judiciary committee nemesis Jesse Helms, R-N.C. Helms has used his position as committee chair to foil the nominations of three other African Americans nominated by Clinton to fill appellate vacancies, including the vacancy in the 4th Circuit, which is the longest standing vacancy in the federal appellate system.

But Democratic Senators who opposed William Pryor are the real bigots!

Mario Layola Has Made His Argument; Now Let Him Defend It

[ 0 ] November 13, 2006 |

In light of Mario Loyola‘s quite remarkable claim that were the federal government were to pass a law requiring militias to disband instead of resisting a foreign occupation the people would obey, because “[n]othing trumps obedience for the rule of law in this country, not even religion,” I propose an L, G & M pop quiz. Which of the following incidents in American history best represents the rule of law trumping all other values in times of war or major social crisis?

A. Abraham Lincoln ignoring Ex Parte Merryman.
B. Andrew Jackson ignoring Worcester v. Georgia.
C. The rise of Klan violence, with the tacit (and often not-so-tacit) assent of state governments, to nullify the 15th Amendment’s enfranchisement of blacks after Reconstruction.
D. The nonviolent resistance to segregationist laws used the civil rights movement.
E. The violent resistance in the South attempting to nullify the desegregation of schools order in Brown v. Board.
F. President Bush asserting the ability to violate the FISA statute.

Seriously, where the hell does NRO find these people, a morgue?

Elections Have Consequences

[ 0 ] November 12, 2006 |

Four of Bush’s more incompetent and wingnutty choices for the federal courts look dead. In general, the Senate Dems should study how Republicans obstructed Clinton’s choices in the last years of is term and do likewise.

Why "Partial Birth" Legislation Will Not Be Struck Down On Federalist Grounds

[ 0 ] November 12, 2006 |

Since a couple of people have asked, I should probably say a little more than my flip response to Pithlord’s hope (and, at one time, prediction) that the federal “partial birth” legislation will not be overturned because it exceeds Congress’ Commerce Clause powers. The long version is here. The short version is that the Rehnquist Court’s Commerce Clause jurisprudence has made only very tentative steps (most of the federalism work has been done by its ridiculous “sovereign immunity” jurisprudence, which isn’t relevant to the case), and recent decisions make it clear that they’re not going to go far enough to strike down this legislation.

The Court’s decisions in Lopez and Morrison held that while Congress could, under the Commerce Clause, regulate economic activity, or activities that in the aggregate would “substantially affect” interstate commerce. Regulating possession of firearms around schools or creating a civil remedy in sexual assault cases were held to be neither commercial activities in themselves (which is obviously true) or part of a broader regulatory scheme to regulate substantial effects on interstate commerce (which is true of the first, more problematic with the second.) To strike down the abortion legislation, however, would not be an application but a significant expansion of this doctrine. Paying someone for an abortion (and because upwards of 90% of American counties don’t have an abortion provider, it’s not uncommon for this to be done by women from out of state) is, in itself, an economic activity. While the previous two decisions can be cabined in ways that don’t affect any major element of the modern regulatory state, claiming that regulating actual economic transactions is beyond Congress’ powers would have much broader effects if applied in a principled way–the Court’s decisions upholding the Civil Rights Act, for example, would become highly suspect.

In light of Raich, any chance that this kind of expansion of the court’s doctrines would happen has pretty much vanished. If the federal government can proscribe the use of marijuana grown legally purely for personal purposes, regulating a woman purchasing a medical service isn’t even a close case. Admittedly, judges do not always apply doctrines in a principled manner. But the Court’s more liberal members, as Raich, demonstrates, have been principled in upholding even substantively bad legislation. And one of the conservatives who would have to switch back compared the court’s previous decision striking down state “partial-birth” legislation to Dred Scott.

So, empirically, it’s clear that this legislation will not be ruled outside the bounds of Congressional powers. And, normatively, this is a good thing. Under modern economic conditions, getting the Court back into the business of making judgments about what commercial transactions have enough impact on interstate commerce is both unlikely to produce a coherent jurisprudence and likely to have very bad consequences. Madisonian separation of powers has been fairly effective at constraining the powers of Congress (indeed, Congress not being able to do enough has been a much more serious problem in American history than Congress overstepping its bounds.) The “partial birth” legislation should most certainly be ruled unconstitutional, but that’s because it’s an arbitrary restriction on a fundamental right, not because it’s beyond the powers of Congress.

Feingold Out

[ 0 ] November 12, 2006 |

Lindsay won’t be happy, but apparently Feingold isn’t running for President. I’m a little ambivalent, because I like Feingold a lot. But in light of the election it makes sense. Evidently, he wasn’t going to win the primary, so his running was more about putting issues forward and affecting the dynamic of the race. Now that the Dems have taken over the Senate, he’ll have a lot more visibility than he would otherwise, and running a campaign would reduce his effectiveness there.

I will say, though, that if Gore doesn’t run there’s no widely discussed ’08 candidate that I’m not highly dubious about. I guess Edwards would be the best remaining one. Hopefully the Democratic sweep will make that Gore/Sebelius ticket more likely…

…UPDATE: I’m also reminded of the claims that Feingold’s censure resolution was cynical political maneuvering (the only way, of course, to prevent the President from breaking the law is to change the law so he can break a different one instead) that would devastate Democratic chances in the midterms. Whoops!

WWAKD? Who Cares?

[ 0 ] November 11, 2006 |

Shorter Ann Althouse: Democrats must start answering the following question: “When will you stop being traitors?”

As Glenn points out, what’s particularly funny about this is that Althouse, Reynolds, Peretz et al. seem to be of the conviction that the taunting rhetoric of despots and terrorists should 1)be taken at face value, and 2)should govern the conduct of American foreign policy. This would seem to be the same kind of nuttiness that produces Althouse’s conviction that once you’ve started a war you can never end it no matter how ill-conceived it was or how badly it’s damaging national interests or how many people are being pointlessly killed because otherwise it would provide “information” to America’s enemies that would somehow destroy its capacities. For example, the fact that the United States ended the Vietnam War without achieving its objectives is what led to the Soviet Union’s triumph in the Cold War. (This is Rob’s department, but arguments just don’t get more theoretically implausible and empirically indefensible than “we need to keep counterproductive wars going to demonstrate ‘resolve.’” Enough already.) Anyway, I have no idea what Iranian leaders actually think about the elections or why I should care, but I do know that the disastrous war in Iraq has ended up advancing the interests of the Iranian state while it’s undermined those of the United States.

…I should also note explicitly that some more honorable conservatives have repudiated this line of non-reasoning.

No, No, Not That Kind of Democracy–The Kind of Democracy Where You Lose

[ 0 ] November 10, 2006 |

As a follow-up to this post, I missed it because I still read the Times the old-fashioned way but the death of the legislation required to inscribe discrimination into the Massachusetts constitution is apparently not merely hypothetical. Somehow, I’m sure this will fail to come up the next time we hear the routine about how litigation inevitably destroys consensus, betrays the people, destroys the very fabric of democracy itself, etc. etc. Here’s an instructive quote from Milt Romney:

Gov. Mitt Romney, a Republican who opposes same-sex marriage, said the vote was a “triumph of arrogance over democracy.” He said that he would “explore any alternatives” to try to force a vote, but that “my options are limited.”

But of course. If the courts issue a decision favorable to gay rights, then they’re arrogantly usurping the power that belongs to the legislatures. If there’s a positive outcome in the legislatures, then they’re arrogantly shoving the “gay agenda” down the throats of the people (or perhaps arrogantly usurping power that belongs to the courts.) There’s no serious democratic theory here: it’s a shell game. The sooner progressives figure this out the better.

But at least we can enjoy some good-old fashioned reactionary resentment:

The debate in the House was full of impassioned speeches.

“I’m 3,000 feet to the right of Attila the Hun, they tell me,” Representative Marie J. Parente, a Democrat from Milford who had lost her re-election bid on Tuesday, told her colleagues. “But you’re not. You’re the other side. The gracious people, the liberal people, the socially conscious people.”

Boo hoo hoo. Don’t let the door hit you etc. That’s democracy, and in the American case it happens to include not only elections but courts that assess the constitutionality of legislative enactments.

What are you going to do, fire me? On an eighty-thousand dollar day? And it ain’t even noon yet!

[ 0 ] November 10, 2006 |

Look, when it comes to party-establishment v. netroots I’m squarely in the “it’s not a zero-sum game” camp. I even think that Harold Ford is probably a pretty good option for DNC chair eventually. [Several months later edit--whew, that was a howler. My apologies. --SL] But, seriously, what exactly is Carville doing here? How much better could the Dems have done? If not for Howard Dean they would have given $12 million to Tammy Duckworth? Does he think this is viable?

Anyway, I think this is a good time to return to this gem from Carville, discussing vice-presidential options in 2000:

By choosing former Georgia governor Zell Miller as his running mate, Al Gore could add intellectual brainpower, rhetorical firepower, and lots of plain old populist piss-and-vinegar to this staid election.


Zell Miller is also a world-class campaigner and orator. His keynote address to the 1992 Democratic convention ranks with Barbara Jordan’s and Mario Cuomo’s as one of the finest examples of powerful rhetoric and partisan passion.

At a time when politics seems moribund, Zell would bring energy. When people are looking for heroes, Zell’s the real thing. And when Democrats need someone who’s not afraid to open up a can of whupass on the radical right [on behalf, I think you mean--ed.], they need look no further than Zell Miller.

Yeah, that would have been great. Can someone remind me why I’m supposed to care about James Carville’s views of Democratic strategy in 2006 again?


But now this will be conventional wisdom — tacitly accepted everywhere and never examined — that Dean is in trouble, that a major faction of the Democratic Party wants Dean out as DNC Chair, that there is a war among various Democratic factions over Dean.

This will all now be “fact” even though Carville has no constituency whatsoever, represents nobody, has no way to oust Dean, and is simply venting long-standing animosity he has towards the insurgent, anti-establishment Dean (who, unlike an envious Carville, actually represents and is supported by large numbers of people). But Carville’s one comment, to lazy reporters, means now that there is some major tension among “Democrats” and that some imagined “jury” is still out on Howard Dean. All of that is based on nothing.

Carhart, Ayotte, and the Puzzle of "Minimalism"

[ 0 ] November 10, 2006 |

I’ve been reading over the oral arguments in the two federal D&X ban cases; if I see any nuggets that don’t fit into my larger article I’ll pass them along. Although Pithlord seems to hold out hope, I continue to maintain that this case will not be decided on federalism grounds, which played very little role in the oral argument. (We’ve had this discussion before, but I think he’s misreading Scalia–in context, I think he’s referring to courts, not Congress. Raich essentially ends any chance of 5 votes to strike the law on Commerce Clause grounds.) Indeed, I think it is almost certain that the law will be upheld, although in what form remains unclear–I’ll get into why in the Prospect piece.

To take a bit of a tangent, one aspect of the arguments in this case is the question of exactly what “minimalism”–which has become a popular way of describing the median votes of the recent court–means. Althouse, for example, reads the argument as “Roberts was looking for a minimalist theory for upholding the federal law, while perhaps Kennedy was looking for a minimalist way to provide the fifth vote for striking it down.” It would be odd if Kennedy voted to strike the law (and I certainly don’t see how such an outcome could be squared with his decision in the Carhart I), but I guess it’s possible. But what are the “minimalist” options? The first option–whether the case is distinguished to uphold ot strike–would be to make distinctions between the Nebraska law and the federal law. But 1)given that the controlling case explicitly turned not just on the vagueness of the statute but on its lack of health exception, and 2)as Stevens points out the factual assertion of Congress that the procedure is never required for health reasons are plainly erroneous, no fair application of Carhart I could uphold the federal statute. The other “minimalist” upholding of the law, I presume, would be a repeat of his suggested Ayotte strategy of reading a health exemption into the federal statute, which could then be upheld without affecting the Casey framework. Whatever one thinks of this–I think very little of it: it seems to me to cross the line from the legitimate act of narrowly construing a statute to save it and simply distorting it–I’m not sure “minimalism” is a useful way of describing the action. Wouldn’t the “minimalist” action be to strike the law, given its transparent inconsistency with precedent, but to give Congress the opportunity to conform to precedent as it chooses? Simply skipping the middleman and inserting a health exemption Congress specifically choose not to include seems to me the opposite of minimalism.

But, at any rate, that’s a semantic issue. The larger point I wish to make is that it’s quite incorrect to equate “minimalism” with “judicial deference.” The Casey “undue burden” standard is, I guess, “minimalist” in the sense of having virtually no content. But the latitude this gives legislatures is largely illusory. The standard does allow courts to plausibly uphold virtually any regulation of abortion short of an outright ban–but is also allows courts to plausibly strike down any significant abortion regulation. Clear rules from the Supreme Court can often increase the latitude of legislatures by constraining the lower courts, which after all is where most decisions are made. Similarly, whatever reading legislation to include exemptions the legislature deliberately excluded is, it’s not deferential. And, of course, Sandra Day O’Connor–the justice most commonly identified with minimalism–was also probably the least deferential and most “legislative” judge of the Rehnquist era. Minimalism has its virtues and its problems, but I don’t think increasing the decision-making authority of elected officials is typically one of them.

Anyway, my preferred solution to these cases is Stevens’ approach in Carhart I, which like good minimalism should allows us to avoid the fraught question of whether reproductive freedom is a fundamental right altogether by noting that the statutes bears no rational relationship with any legitimate state interest:

Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation–a reason that also explains much of the Court’s rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U.S. Const., Amdt. 14.


Quite Frankly, Goodridge Was Right

[ 2 ] November 10, 2006 |

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I was lucky enough to have a brief chat with Congressman Barney Frank, who was visiting Hunter to teach two classes, last night. He confirmed my analysis of Massachusetts politics after Goodridge–it’s highly unlikely that a constitutional amendment to overturn the decision will pass, and it it does it will almost certainly lose.

As he pointed out, this points to a small-d democratic justification for judicial review: it can change an ossified political dynamic that makes changes to systematic injustices difficult. Courts (and this is probably a good thing) cannot effect major social changes alone, and if they’re left politically isolated they will inevitably lose, but their ability to act first can provide an important impetus. All anti-discrimination and civil rights movements face accusations that changes will produce chaos and dislocation, and it makes it very difficult to overcome entrenched interests. Brown did not, in itself, lead to significant desegregation in the Deep South (although it did matter in the border states), but without it the executive and legislative branches wouldn’t have been compelled to end Jim Crow. An when it comes to gay rights, judicial action is likely to be more effectual, because their won’t be chaos at all. (Indeed, one reason why many supporters of anti-gay discrimination are presumably pushing for a constitutional amendment is that they recognize that when some states legalize gay marriage, citizens will notice that their apocalyptic predictions are conspicuously failing to come true. Framing it as being about “activist courts” rather than the substantive outcomes is a convenient way of dodging the issue.)

And, as I’ve said before, this is why I write more about nominal “moderates” of the Reynolds/Althouse variety than outright reactionaries. When it comes to obstructing social change, people who favor change in the abstract but for whom it’s somehow never being done in the right way or at the right time are in some ways more pernicious than outright reactionaries. To the extent that judicial decisions can change the status quo in ways that make this kind of phony moderation increasingly untenable, they are a good thing.

Um. Run That By Me Again?

[ 0 ] November 10, 2006 |

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A meaningful college game in the metropolitan area? Because Rutgers is undefeated? And they stay that way because they beat the (admittedly dubious) #3 BCS team? What’s next, the Royals win 115 games? Kevin Federline named greatest artist of the 21st century? The Democrats take over the Senate?

Good for them…

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