The Supreme Court and Distortion of the Political Process

Looks like Alito was confirmed this morning, in the most partisan supreme court confirmation vote in history, 58-42. Here's the roll call vote, but it's easier to just remember that except for Nelson (NE), Conrad (ND), Johnson (SD) and Byrd (WV), the Donkeys and their nominally independent ally all voted no, while the only Elephant who didn't vote Yes was Chafee (RI).



This bothers me. Let's stop pretending to ignore the forty ton dead baby in the room, Roe vs. Wade. I'm going to try to keep my personal opinions on abortion out of this to the maximum extent possible, but they are basically that although I am revolted by the concept and think it should be socially discouraged as much as possible, I also think that it must be legal with comparatively few restrictions. I will admit I would rather there was not one more abortion ever again, but to outlaw it in general would be a clear violation of principles I hold more important than that. I say this for disclosure; this is not really about abortion per se as it is about necessary compromise and distortions of the political process.



The issue with Samuel Alito was not competence, or fitness for the court. He was and is obviously, overwhelmingly, qualified. The issue was one party feeling that a certain court decision is wrong, and choosing a judge who is reasonably likely to vote to limit or reverse it next time the issue comes up. That party also happened to have won the presidential election, as well as a majority of senatorial ones. The presidential one gives the person we elected president the right and privilege of picking a supreme court judge whose philosophy is more or less in alignment with his own. That's part of what presidential elections are about. If the american people don't like it, they should have elected someone else president. However, indications are that a vast majority of the american public does like it. Not just in polls, but in elections. The Elephants, making this a campaign plank so it's not like this was any deep dark secret, won 55 senate seats and the presidential election. Senatorial seats are the one election nobody in the world can gerrymander, and although I can conceive of ways to gerrymander the presidential election, it certainly wasn't done in 2004, or if it was done, it didn't materially alter the result (run "Democrats charged election tampering 2004" through a few search engines, and contrast the news stories, including convictions, that come up with what comes up when what you get when you run the same searches replacing the party affiliation with "Republican").



Now the other party, the Donkeys, did not win the presidential election. This means that while the President might consult with them, and did in both the Roberts and Miers nominations at least (The Donkeys failing to come to Miers aid hoping for someone even better being one reason she had to withdraw), the maximum involvement in the process that the president could theoretically be legally required to give them is this up or down vote that they just got. In fact, since they only won 44 senate seats, plus a nominal independent but a de facto ally, the president would have been within his rights to ask the Elephant senators only into his office, and go down the list of potential nominees until he found one fifty one Elephants or more could support. He didn't do that. He was a lot more accommodating and consultive than that, and he could have gotten a candidate significantly more in the Donkey faces than Alito.



The reason the Donkeys are holding their breath until they turn blue is quite simply that they are being held hostage by a radical element within their own party. This element was presented with a surprise victory thirty-three years ago that they probably shouldn't have won, and they knew at the time they shouldn't have won (Roe vs. Wade was a real shocker at the time, including to the victors, as I'm barely old enough to remember). The word "abortion" appears nowhere in the constitution, and in fact, there is not one word in the document itself or any of it's amendments having to do with the issue or anything with significant association with that issue. The one item that appears to have significant direct association is the part about reserving powers not explicitly delegated either to the states or to the people.



Nor does the approach the constitution takes give us, the citizens, any rights. It acknowledges that we have rights, and prohibits their removal by the federal government.



The function of the Supreme Court's power of review, under Marbury vs. Madison, is not to legislate. Rather it is to say when the government has stepped over the limits upon their authority drawn up in the constitution. In the early years of the Republic, even this much was seriously debated by our founders, and there was a large faction who believed that the corrective factor should be the next election, and I am not certain they were wrong. It certainly should keep the citizenry more involved in the electoral process.



Based upon, you know, the actual words on the paper of the constitution and its amendments, not to mention well-documented intents of the framers, one could build a serious case that it isn't the federal government's business at all. Power not specifically reserved to the federal government, goes to the states or the people per the Ninth Amendment. Indeed, had the Supreme Court in 1973 made a serious case instead of incidental that it was reserved to the people and not the states, I think it might perhaps have been more accepted, but they did not (text of Roe vs. Wade decision here), instead relying mostly upon a different segment of the Fourteenth Amendment than the one that extends the limitations on the federal government to the states.



Whatever your opinion of that argument, the fact remains that this removed what should have been a political decision from the legislative branches at whatever level and arrogated them to the judicial. This was clearly not what the courts were intended for, nor is it what they were designed for. But because it was a national "Get out of doing your job FREE!" card for legislators at both the state and national levels, it was allowed to stand. Those legislators didn't want to face enraged voters, as they would no matter which way they voted. A good way to lose votes, and no way to gain. Is it any wonder there have been so few legislative challenges?



On the other hand, the nature of the supreme court decision prevented what should have happened: A reasonable compromise which likely would have resulted in women being able to get abortions, with varying restrictions in the case of fetus viability, if the woman was herself a minor, and notification, either before or after the fact, of other stakeholders such as any husband the woman might have, and exceptions having to do with medical reasons limiting the restrictions. Absent Roe vs. Wade, we would have come to some accommodation on the issue that, if perfect for very few, would have been completely unacceptable to only a very few as well. Furthermore, the issue would be settled with only minor movements, not this great flaming controversy that we face today. Perhaps the standards would be very different in some states from others; I can only observe that bus tickets are cheap, and so anyone shopping for a better venue for an abortion doesn't have a very high wall to get over. In fact, a one way ticket is even cheaper; they could stay and become part of that state's bulwark against a tightening of the laws by voting in that state.



But the real difficulty lies in the surprise victory gained by one side that, however politically powerful, is nonetheless in the minority. So now instead of one side of the issue being energized, we now have two. Furthermore, those who were handed the surprise victory were and are a critical block in what was the ruling party, without whom that ruling party would certainly fall, and even today when they are no longer the ruling party, without this block of votes they would not be competitive nationally.



For the first few years, no worries. Abortion wasn't an issue in the election of 1972; I have no idea what Richard Nixon's position was. Reagan made some hay on it in the 1976 primaries, but once Ford beat Reagan for the 1976 Elephant nomination, it wasn't an issue then, either, as no Donkey opposed to abortion could get nominated. Heck, they won't even let them speak, nowadays. But by 1980, anti-abortion folks had had time to organize, and they were a large portion of the reason why Reagan won - he made it a campaign issue and they responded by supporting him, both with their votes and with their activism. I do not understand upon what grounds their opponents claim this was somehow evil, and at this point both "dogs in the fight" of the issue were energized, although one was trying to guard a bone that they had come into its possession almost accidentally, the other wanted that bone.



Indeed, Reagan's picks for the court (O'Conner, Rehnquist elevation, Scalia, Bork, Kennedy) were no problem until we got to Bork. Obviously qualified, perhaps the foremost legal scholar in the nation at the time, there was a definite track record that said he'd likely vote to overturn Roe vs. Wade, and he would have been the fifth vote, making it a majority. Well, although this was exactly the sort of nomination he'd been elected to make, there were 55 Democrats in the senate at the time. This meant Reagan needed some crossovers.



He didn't get them. Indeed, the nastiness of the attacks on Robert Bork set a low for politics at the time, and subsequent antics by both parties can be traced back to this incident. So-called "pro-choicers" perceived themselves as having their backs to the wall, as if a reversal of Roe vs. Wade would somehow permanently outlaw abortion nationwide. Indeed I recall hearing them make this false argument in several venues at the time; it helped them energize their troops. They not only took no prisoners, they metaphorically ate their own dead.



Other accusations were made against Robert Bork, but anti-abortion was the one that stuck, enough to get him rejected by the senate, anyway.



I regard this entire concept as wrong-headed in the extreme. I want to see the nominee's decision-making process. If we really want an independent judiciary, I regard any questioning as to how a nominee would rule in any specific case to be prejudicial and grounds for recusal should it actually come before the Court, because they are certainly not approaching it ab initio, having publicly and improperly painted down their own options. It is harder and correct, although less welcome to issue activists, to get a sense for how they think to decide if a nominee is fit to be on the court. It is not acceptable for an outstanding legal mind to be rejected because said nominee would likely vote the other way on any particular issue. But the forty-ton dead baby in the room, that Ted Kennedy and the Kossacks and NOW bloviated about ad nauseum, was that Alito - correctly - would not answer questions about how he would vote directly related to specific issues. To wit, their pet issue, abortion.



This was the issue with Thomas, and would have been with Souter, too except that the abortion activists were happy with him. Nonetheless, president's who wanted a prayer of getting a pro-abortion candidate through learned from Bork - nominate someone without a track record on the issue. I'm not going to go into whether or not I believe Anita Hill at this point, but it was the pro-abortionists who gave the story legs. It was not enough that there be an inconclusive record, their requirement was an affirmative siding with them.



Clinton ran on a platform that included legal abortion; when he won, it was no surprise to anyone that he nominated pro-abortion judges. The Elephants, in the minority then as the Donkeys are now, realized that elections have consequences and did not obstruct. Indeed, the vast majority of them were able to vote for them despite the nominees decided - and known - proabortion preferences. The nominees were qualified, and there were no grounds to reject them that were not clearly prejudical.



Roberts kind of got a pass because the Roe vote was 6-3 and he ended up replacing Rehnquist, who was against anyway, having written the original dissent. No worries, no danger, obviously qualified, some slanders get tossed around but he gets a pass on the Bork treatment.



Alito is an actual step away, replacing a member of the Roe majority which may (and I emphasize may) now be down to 5-4 with his confirmation. So the pro-abortionists panic. They know they can't win the President's mind, they know they can't win a party line vote, as the majority of the american public favors more restrictions on abortions and so, blindingly obvious, the party that sponsors that wins more elections and is now in the majority in both houses of Congress. So smear and filibuster was the order of the day, and he gets the full Bork treatment.



Now the only way this whole thing makes any kind of sense is if the pro-abortion forces cannot win nationwide on the ballot, and this does seem to be the case. The Donkeys had a peak of 61 senators in 1977-79, 57 in 1993-95, the Jeffords switch in 2001-2002 was as close as they've come to majority party since.



Nonetheless, I believe an actual Roe vs. Wade reversal would be a disaster to the Elephants. The anti-abortion forces, having largely gotten what they want, will pack up and go home, becoming a less potent force. They'll still agigate on the state and local scale, but not at the Congressional level. Indeed, had the Donkeys not been so decidedly pro-abortion, it's likely they would have more seats now. This is the issue that has largely lost them the South and Midwest. Reagan won 49 states in his re-election but had to deal with a Donkey Congress his whole tenure. Bush was re-elected, primarily because he understands the war on terror, by a much smaller margin but still gets to work with an Elephant Congress. The longer it takes, the worse it's going to get for the Donkeys. They should go limp on this issue, at least as far as Supreme Court nominees go, and start proposing legislation making it affirmatively legal to get an abortion. That was the right thing to do thirty years ago, and remains the correct thing to do now. Let's have the discussion and come to the compromises that we're all equally uncomfortable with. I do not believe that it would be a return to the dark ages, and any representation I have seen to the effect that it would has been clearly on the level of hyperbole, whether it was intended thusly or not. Yes, abortion will probably still be legal almost everywhere and there will probably be some restrictions most places. This is quite reasonable. Fact is, few abortions are performed because of medical necessity. The vast majority are purely voluntary. Fact is, parents are responsible in all other ways for their children and not permitted to resign the responsibility without a willing replacement. Absence of parental notification and permission isn't usually about theocrats who won't give permission; it's usually about giving the children an easy out so mom and dad don't know and won't ground them. This is an argument we as a society should have had thirty years ago, same as every other country in the world. The fact is that the Supreme Court ruling, by premepting the argument, has kept it from happening and distorted our political processes for thirty years now. One group got a surprise present that they're fighting tooth and nail to hang onto, despite the fact that they are clearly in the minority. It's past time this was changed.



Unfortunately, this is not something the Donkeys can stomach risking. They're in the minority electorally, and the trends are sufficiently strong that some Donkey incumbents may be put in danger next election cycle. They know they've lost the electorate; what they do not understand is that the anti-abortion crowd has too. The abortion plank in the Elephant platform is firm but is not too prominent for a reason. It gets the the Elephants the anti-abortion folks. If these voters are unhappy with the priority the Elephants give it they are certainly not going to the Donkeys. Similarly, it's time for the Donkeys to turn this from a Supreme Court issue into a real election issue. Most voters do not favor general illegality, and therefore, the issue is likely to be a winner there where it is a loser at the "we must control the Supreme Court" level. If the pro-abortion fanatics get upset with the Donkeys, where are they going to go? The Elephants? I think not.