A referendum on Roe v Wade but then what?

It has been well discussed lately that the untimely death of Antonin Scalia is igniting a fight in Washington with the Democrats and Republicans wrestling over which President gets to appoint a successor. What I think it is more interesting is the impact this series of events will have on the discussion topics during this election cycle. Serious issues of gun control, affirmative action, and abortion will replace the circus of giant-wall building, mass deportation, and who took money from whom.

In fact, some have speculated that the conversation shift will ultimately turn into a referendum on Roe v Wade. Just as Bernie Sanders has made it clear that his nominees would have to commit to overturning Citizens United, every Republican candidate will eventually promise to appoint a justice willing to fight for the rights of the unborn. Eventually the Dems will be dragged into the conversation and will promise to nominate one of the opposite leaning. And for the first time in 40 years’ abortion will be put to the vote.

Following which, absolutely nothing will change.

Republican candidates have built their primary election platforms on right to life promises for decades. Candidate after candidate has sworn up and down that he would be the President to repeal Roe v Wade. Our conservative politicians make promises early in the election cycle to invigorate their evangelical supporters and then forget all about them once they make it into the general election. Following victories, many have nominated justices who should have been able to make a difference. But not a one of them ever even got the ball rolling.  There are many consistently hollow promises in Washington and one of them is “I will end abortion in America!”

CIVIS

The simple reason this is the case is that overturning Roe v Wade would be nothing short of political suicide for the responsible President and his associated party.

Consider that most of the voters in America are women and most of those women are pro-choice. In general, women vote like men with the economy and jobs as their biggest concerns, but while men don’t have a shared motivating issue that gets them to the polls and puts their check books to work, women’s most important threshold voting issue is abortion. Pro-choice women are likely the most powerful dormant voting bloc in the country.  This army of voters would come out in numbers unlike anything we have seen before. Incumbents from the Executive on down would be run from office.

But the movement wouldn’t stop there. This group also has tremendous fund raising potential. While their male counterparts are already pushed to the limit of their political giving, women currently give at less than half the rate of men and when called on, could raise unheralded sums. These funds would go to pro-choice lawyers and political action groups who would fill the judicial system with lawsuits. Some out of spite, some out of strategy, but all with the intent of creating a new precedent for federally legalized abortion.

No one would want to reinstate Roe v Wade. It’s a well-known fact among legal scholars from both sides of the aisle that it is a terrible piece of legislation. It is poorly reasoned, not grounded in law, and lacks intellectual legitimacy.  Without getting too academic, one of the laws many flaws is that it is based on the constitutional right of privacy which does not exist. Another is that it claims not to opine when life begins, but then forbids states from regulations that place life’s beginning prenatally. A third is that it forbids due process with respect to abortion even though due process is a prerequisite of personal liberty. If, you are thinking, “no way, he must be biased,” I am not.  Try a Google search of “problems with Roe Vs Wade” and read what the legal scholars say.

The legal left knows that Roe v Wade is a specious argument that is ripe for turnover. Meanwhile its sloppy shortcomings are exactly the fuel that keeps the pro-life’s hope furnace burning. And that pro-life movement is already going at pretty much full-steam. If pro-choice America found their reproductive rights seriously threatened, if the Supreme Court actually followed through on the conservative promise to end federally legal abortion, a sleeping dragon would be awake unlike anything the American political landscape has ever seen. Pro-choice voters, vast sums of money, political action groups, and thousands of liberal lawyers would mobilize under the banner of finding a new precedent for federally legalized abortion and creating a new law that was better constructed, based in sound legal arguments, and would stand up to the toughest scrutiny the right could throw at it.

It wouldn’t be all roses for the left. If Roe v Wade were overturned, there would be a period of time when abortions would not be legal at the federal level (they would still be legal in many states). However, the end result would be an environment where a woman’s right to a legal abortion was more strongly protected than it ever has been. What seems like the worst thing that could ever happen to the pro-life movement would probably end up being the best thing that could ever happen for abortion rights.

Consider what I say. If you are woman (or man) who votes only on the issue of abortion rights, you are wasting your vote. Stop worrying, it’s not going to change and if it did it might be for the better.

SCOTUS Battle as important as Cross Town Classic

Or maybe a little less…

The untimely death of Justice Antonin Scalia this weekend has started a partisan battle in Washington. The President is saying that he will nominate someone in due time which probably means about one month. Mitch McConnell, Leader of the Senate, is saying that no nominee of any stripes will be confirmed by the end of the President’s term, and this is an issue that must be left for the next President.

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The world will miss this important, colorful man.

The Republican leadership does a lot of infuriating and seemingly obstructionist things, but is this one Dems should be up in arms about? No, not at all. Whether you are a Republican or Democrat it should make no difference.

History offers very little in the way of precedent. In the last 80 years, there have been only two Supreme Court nominations during a presidential election.

  • The one that was confirmed was Anthony Kennedy but he was the third appointee for a seat that had been open for some time, so it doesn’t really count. Remember the vilification of Robert Bork? I met him a couple times. Nice guy, but comically disheveled.
  • The only true nomination during this period was Lyndon Johnson’s 1968 nomination which was not confirmed.

But it should be noted that during the 1968 hearings, the “Thurmond Rule” was created. The Thurmond Rule, named for long-time senator, Strom Thurmond, states just what Mitch McConnell voiced on Saturday – that no court nominations will be confirmed during an election year. Far more a guideline than a rule, it does still illustrate that the modern historical precedent is on McConnell’s side.

That may be little relief to you if you are a Democrat but there are better reasons to un-knot your knickers. First, just consider the simple mathematics behind it. The President knows that if he can get a candidate nominated before he goes, he has 100% chance of making it a Democrat (or one sympathetic to Democratic positions). If he passes and allows the next President to fill the seat, the uncertainty of the election reduces his odds to 50%.

On the other side of the aisle, the Republicans know that if they can’t hold off an Obama nomination, they stand a 0% chance of getting one of their nominees in place. But if they force the delay until there is a new President, their odds improve to 50%.

Maybe this is obvious, but from a political finagling perspective it illustrates that either side should do exactly what they are doing, and if the tables were reversed, it would be the Republican President promising to shove a nominee through the system and the Democrats promising to block it.

If my Democratic friends, continue to be enraged, here’s my final attempt to talk you off the ledge. Republican Presidents are notoriously rotten at picking conservative judges. To list a few examples, John Paul Stevens, nominated by Gerald Ford, was a leader of liberal jurisprudence at the time of his retirement. David Souter was appointed by George H Bush and is considered one of the most liberal judges on the bench. And most recently John Roberts, that handsome devil and Chief Justice appointed by George W Bush was the deciding vote upholding Obamacare.

So…

In nonpartisan times, I think the Senate would probably have the power to determine which President gets to appoint the next nominee, and in this day and age I think the it’s a foregone conclusion that the Republicans will hold true to their promise – and suffer little damage for it. Still, judges are fair by nature and those who make it to this level should not be feared.  Reserve your emotions for the positions that the candidates can control and don’t worry about the ones that are determined by simple math.

PS. It’s been nearly 8 weeks since I posted. I feel bad about that although my apology is largely directed at myself for getting too busy to do what I care about. I came out of the holidays with a new tutoring responsibility, a short eBook that I wanted to publish on learning multiplication tables without memorization, some 8-Bit Bats to sell, and several friends awaiting my attention on proposed business plans. I am still not caught up, but I am working back toward balance and more regular posts will return over the coming weeks.