Russell Arben Fox has a typically thoughtful response to my recent post about Bob Casey and abortion politics. You should read the whole thing. I have a couple quick comments related to Casey and abortion specifically, and another comment that is more broadly applicable. On the former, I should first of all say that if the race, as it almost certainly will, comes down to Casey vs. Santorum, then of course pro-choice progressives should support Casey. Even from the standpoint of reproductive freedom, it’s a wash from a direct standpoint, and the more seats the Dems get in the Senate the better. (I also take no position on the primary; making the electability/ideological compatibility tradeoffs requires more local knowledge than I posses.) Secondly, I’d like to repeat a distinction that I think I’ve made before: I think it is clearly possible for someone to be a progressive feminist and opposed to abortion, and even to favor some regulations. I do not, however, think that a feminist can plausibly support laws that criminalize abortion as they are actually written and enforced. As a quick comparison of Latin American and Canadian abortion rates will make clear, criminalization is a very ineffective method of discouraging abortions, and also carries with it all kinds of negative externalities (the most important ones being the death and maiming of poor women.) So while compromises that lower abortion rates are certainly possible, I agree that where abortion bans (whether total or partial) are concerned I’m just not willing to compromise, barring some massive cultural shifts. And even where lesser regulations are concerned, I would urge anti-abortion feminists to think very carefully about the effects and class implications of such regulations.
On a broader point about Alito, I think there’s a very important distinction to be made with respect to this comment:
Casey’s silence regarding Alito, if it isn’t just canny campaign politics, may represent nothing more than a general faith that socially responsible reforms need not come to an abrupt end even if the Supreme Court does become even more unfriendly to progressive politics than it is today–in fact, such an occurance might turn out to be a helpful step in getting Democrats to take popular, grass-roots legislation more seriously.
I think it’s very important to be clear about this. I should emphasize that I would be perfectly willing to do without judicial supremacy, although I’m not willing to unilaterally disarm (and I certainly still maintain my position that social changes achieved through the courts don’t create more opposition than those obtained elsewhere). But much of Alito’s jurisprudence is problematic not because he will refuse to go along with creating new rights, but because he will make legislatively created rights much harder to enforce. The awful “sovereign immunity” jurisprudence that he almost certainly supports, for example, makes it much more difficult for state employees to get legislatively-created rights (such as the ADA) enforced. Even worse from this standpoint is the extent to which he would make it much harder for employees to sue under anti-discrimination laws. It’s very important not to fall into this trap: Alito’s elevation to the bench would not decrease the Court’s role in American society, or undermine judicial supremacy, or make it easier for liberals to pursue legislative change. Rather, Alito represents a part of the classic conservative bait-and-switch in which broad readings of the constitutional clauses to protect minority rights are “judicial activism,” but when liberals go the Congress the laws are found to be outside of Congress’ power, or made extremely difficult to enforce by the executive and judicial branches. And this is why it’s so disturbing that Casey will not oppose Alito’s nomination. Rights are only relevant if there are effective remedies. Enforcing protection for workers is already very difficult; employees generally have many fewer resources and much less knowledge (and security) than their employers. The last thing we need is to make it even more difficult for employees to enforce their rights. Supporting a judge who supports the “New Federalism” and is hostile to lawsuits brought under anti-discrimination statutes will make the problems Russell describes worse, not better.