Why the idea of John McCain appointing Supreme Court Justices worries me even more than Rudy Giuliani appointing them.
By stealthlawprof Posted in Archived — Comments (75) / Email this page » / Leave a comment »
I continue to read posts indicating that McCain has voted favorably on conservative judicial candidates and thus should be trusted to appoint the same. That reasoning is faulty.
For John McCain, the single most important issue before the Supreme Court is campaign finance. That issue has been at the Court for a number of years, and it will be there through the foreseeable future. Anyone who believes McCain will appoint Justices who will harm his handiwork (his prime example of a change he has created) is hallucinating.
Now, I believe McCain is wrong on campaign finance, but that is not the reason for this post. I also believe that the vast, vast majority of conservative lawyers, scholars, and jurists -- whom I would define for now as those who reject Roe v. Wade and its underlying doctrine of substantive due process -- believe McCain is wrong. That is the reason for this post.
There is no inherent reason why someone who rejects substantive due process must also reject McCain's campaign finance law. (I believe it is far more consistent, but I am not claiming that the two positions logically mandate one another.) However, the paucity of people who split those positions means (1) a McCain appointment to the bench who has been thoroughly vetted for compatability with McCain's campaign finance position -- which will happen -- is far less likely to pass muster on Roe v. Wade and (2) it would take an extraordinary effort by the McCain administration to find jurists who can pass muster on both issues.
Presidents are not always very attentive to judicial appointments, and expecting that level of attention to Roe v. Wade from McCain (who is more hanger-on than true believer on the issue) is a pipe dream.
While Giuliani is risky on the appointment of judges, I would suggest he is less scary for a couple of reasons. First, he has no stake in any issue before the Supreme Court that is comparable in any way to McCain's stake in campaign finance. Second, Giuliani has committed himself to appointing judges out of a model that would overturn Roe, understands what that means, and has surrounded himself with prominent lawyers who are solid on this issue.
He is not my first choice, but with judges in mind, Rudy would have to come in ahead of McCain.
pretty much... I'm actually starting to tihnk that Rudy might be okay although Mahoney is a likely candidate.
The problem with your take here is that (my judgment)
your choice is McCain making Scotus selections
or HRC.
Your call.
Do you really think HE will make the selections? I think there is cause for concern that he would go by the special "lists" of Leahy, Schumer, or maybe his friend the Senior Balloon from MA.
Have to agree.
If he tries to Harriet Myers us conservatives, all objections will only cause him to get more obstinant.
We won't see an Alito as a result.
When Miguel Estrata was being filibustered by the Democrats in the US Senate, Republicans held a 51 to 49 seat majority, but McCain never spoke out against the Democrat tactics. Later McCain said that he wanted to retain the judicial filibuster because he might want to filibuster a liberal nominee. But check McCain's record. McCain never filibustered a single Clinton judicial nominee. You can't tell me that Clinton never nominated an activist to the federal court of appeals.
So, I think McCain's behavior and statements when the Democrats were filibustering conservative judicial nominees is a reason to think that McCain would appoint liberals to the federal courts. After all, if you take McCain's denunciations of Pat Robertson and Jerry Falwell seriously and consider that conservative judges like Scalia, Thomas, Roberts and Alito don't think that McCain Feingold is compatible with the 1st amendment, McCain would probably prefer activist judges.
He has already shown willingness to sacrifice conservative judges in order to pander to his buddies in the media under the auspices of "congeniality" and "compromise" with the Kennedy-Schumer faction on the other side of the aisle. How can we trust he wouldn't bend over and beg for more when the liberal interest groups villify his nominees?
"I don't know the key to success, but the key to failure is trying to please everybody." -- Bill Cosby
1. Fred Thompson. I like his Federalism.
2. Rudy. Olsen/Estrada, need I say more.
3. Mitt. He has first hand experience with screwed up courts.
4. McCain/Huckabee. Who knows what these two would do.
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CongressCritter™: Never have so few felt like they were owed so much by so many for so little.
"Second, Giuliani has committed himself to appointing judges out of a model that would overturn Roe, understands what that means, and has surrounded himself with prominent lawyers who are solid on this issue."
No, he has not done this. Rudy has made it clear that his version of strict constructionism can include supporting Roe vs. Wade. Nor has he rejected it personally. Expecting him to pick judges absent any commitment strikes me as wishful thinking.
And even if he did so promise, why would you accept mere words from someone who's formerly been for abortion, even federally funded abortion. By that standard, McCain is fine since he's promised not to let campaign finance reform get in the way of picking conservative judges.
That's not to say I disagree with your reasoning. But the only candidates I consider reliable here are Huckabee and Fred (who I support). And unfortunately they have other problems.
How do you trust a man who apparently has no judicial philosophy at all? He seems to have no problem with judges using penumbras and emanations to find things like a right to privacy to implement their will. The only time he has any objection is if he personally disagrees with the outcome, as in the case of Roe. He just doesn't get it.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman
Did you read about the judge Huckabee bragged about appointing as governor? Bush put him on a federal court, and he apparently turned out to "evolve" into a liberal very quickly. I agree he can't be trusted here. We've seen enough judges "grow."
The issue is not one of doubting McCain and trusting Rudy. For the most part I trust both of them (although neither one is my top choice). But trusting McCain means believing that campaign finance "reform" is one of his proudest accomplishments and inferring from that information (which is well supported by his actions) that he will make Court appointments to defend his great accomplishment. Those appointments are very unlikely to reject substantive due process because that position is rarely held by a person who believes the First Amendment allows government control of political speech for the purpose of protecting incumbents from criticism.
1. Any Republican
2. Any Democrat
"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill
It wasn't just Ford and Bush who appointed liberals/moderates to the Supreme Court.
Also, there was nothing in his past record to indicate that Souter would become a liberal. All to the contrary.
W.C. Fields for President!
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Pick a pair of SCOTUS Justices from the following list
1. Thomas and Souter
2. Scalia and Kennedy
3. Rehnquist and Blackmun
4. Breyer and Ginsburg
Which pair do you prefer? Which pair would you least like to see repeated?
"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill
You have to consider ALL of the justices that a president nominates and his batting record.
Home Run Percentages:
20% - Richard Nixon (1 for 5)
00% - Gerald Ford (0 for 1)
33% - Ronald Reagan (1 for 3)*
To be fair, Reagan should have batted 66%, but his Administration was too hobbled by Iran Contra and it belatedly and ineffectively fought back the criticism that his SCOTUS nominees received.
50% - George H.W. Bush (1 for 2)
00% - Bill Clinton (0 for 2)
100% - George W. Bush (2 for 2)
For a start, he made four appointments to the Supreme Court, not three. The promotion of Rehnquist from AJ to CJ was a separate appointment which was separately approved by the Senate. He could have avoided the need for a separate appointment by making a new appointee the CJ - as Bush did with Roberts.
Secondly, you can't count Kennedy and O'Connor as being the same as Breyer and Ginsburg. Just imagine the Scalia appointment and Rehnquist promotion were not on the table and you were simply comparing Reagan for O'Connor and Kennedy with Clinton for Breyer and Ginsburg. Reagan is clearly preferable - though President Gore would disagree.
Arguably, O'Connor and Kennedy, far from representing a zero, represent a record comparable with Bush (41) - not as good as Thomas but way better than Souter.
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I think Reagan wanted to do better with both O'Connor and Kennedy. From my understanding, he had promised a woman; and there weren't a lot of choices out there in the early 80's. I also read where he tried appointing someone else who would have been better, but he would not accept Reagan's offer.
I also understand that Kennedy was a third attempt after two nominees were rejected. I'm not so sure what the story is on the second.
I may be wrong on this. At 25, I'm too young to remember Reagan's Presidency; I have to go by what I read.
Reagan had promised a woman, and the pool turned out to be frightfully shallow at the time. Kennedy was the third attempt after Bork and Douglas Ginsburg of the DC Circuit. Doug Ginsburg was a solid judge, quite libertarian in his orientation. The problem was that his libertarian streak had led to some use of marijuana -- and he admitted inhaling.
That the pool of women candidates turned out to be very shallow is no defense whatsoever for Reagan. He would never have been in that position in the first place had he not made such a ridiculous and bizarre campaign promise to pick a woman.
I mean, who responds to that type of group-identity pandering? The answer, of course, are liberals. Put another way; the answer is noone that was going to vote for Reagan anyway. That pledge gained Reagan nothing, but it wound up costing the nation dearly for over 20 years.
The lesson from that whole situation is that Republicans should not act like liberals by making such promises.
I think you are forgetting a few things.
First, with an expected 55 Democrats in the Senate, no President can appoint anyone who even be palatable to conservatives.
Second, you would have to reject Roberts and Alito. Roberts acknowledged that he believed in substantive due process. Certainly neither are not reliable votes for overruling CFR, Roe and Casey (note both must be overruled), or any other bad decision. They need only deny cert to uphold it. There are actually probably only two or three qualified people in the nation who might consider such actions, and they would be too "out of the mainstream" for a Democrat Senate. NO ONE who is qualified would overrule the whole idea of "substantive due process." It is just too favored in the legal establishment, even among so-called "conservatives."
Similarly, in Casey and Roe, CFR, or ANY other case, we need a case to challenge it AND the necessary votes for cert. Those are VERY difficult hurdles. I don't even see cases emerging, much less cert votes.
Anyway, considering that Roberts and Alito would be so difficult to confirm, there is no way anyone who is acceptable or even palatable to conservatives will get appointed.
Back to McCain, his problem was his support of a Sandra Day O'Connor building. She destroyed the court and single-handedly eliminated any future opportunity to overrule Roe with Casey. She was horrible in her other opinions and writings as well. That McCain would think to name a building for her and use taxpayer funding for it speaks volumes.
Then you've got the gang of 14 and the whole idea of McCain's always wanting to reach across to Democrats. It won't bode well for judicial appointments, especially with a Democrat majority in the Senate.
Things might be different if we had a Republican Senate majority (and one that did not count Arlen Specter as a Republican) or even Democrats who weren't adamant about denying a hearing, much less a cloture vote, on any nominee who isn't liberal.
So in the end, I believe it is a moot point. Any Republican would probably do just as well, and I'm not so sure it would be too far off from what the Democrats would give us.
No, all Presidents are not created equal. Many will seek a "moderate" justice to avoid a fight. I think McCain would. I think Giulini would. THEIR base is not social conservatives.
Now what about someone who cares about plausible constitutional interpretation--esp. someone whose views accord with those who have been disenfranchised by judicial activism? Well, I don't think they'll just fold, even in the face of a 55-vote Senate. (Side prediction, if the Dems pick up more than 2 seats in the Senate, they'll pick up the presidency anyway). They'll fight--and put one solid conservative up after another--and make the Democrats spend the political capital borking each one of them. It is the Democrats who will fold.
I don't trust Giuliani of McCain to be up for such a fight. I trust Thompson and Romney to be.
"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke
SoCon credentials. I don't want them picked for their opposition to abortion. I want them nominated because they can read the Constitution and will interpret it according to the words on the page, NOT a desired outcome. Even if I don't like the outcome.
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CongressCritter™: Never have so few felt like they were owed so much by so many for so little.
I agree that opposition to abortion per se is not sufficient or even necessary for a solid judicial pick. But it is big positive in my book because:
1. They will have a great motive--if fact, enthusiasm--for resisting the reading of libertinism into the Constitution. I want somebody who is not simply smart enough to see the mistake, but passionate about correcting it.
2. The intellectual virtues necessary for good judging are not simply being able to read--they must be able to ascertain the moral purpose before understanding the words of the law. You can't read the law without an appreciation of its moral purpose. I am suspicious of anyone's legal judgment, therefore, who can't tell the difference between human rights and the decapitation of an unborn child.
To take another example--would you not mistrust the legal judgment of someone whose moral judgment (allegedly) led them to conclude that child molestation was a human right, or that the reintroduction of slavery would be great public policy?
But to adopt George Washington's expression, perhaps something can be said for "the effects of a refined education on minds of a peculiar structure." So maybe one can be enthusiastic about legal abortion, but at the same time enthusasitic about not reading it into the Constitution, and more generally, an honest, reasonable interpretation of the law.
"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke
Frankly, chosing justices for their "moral understanding" is nothing more than the left chosing justices who will legislate. Only it will be done by justices on the right. I'm quite sure that the folks you brought you 40MM+ murdered unborn babies would find comfort in your words, because I'm pretty sure they would approve of the "moral understanding" that went into Roe.
I'm specifically not interested in a "reasonable interpretation of the law", rather, a rational interpretation of the Constitution.
Your examples are simply foolish. Child molestation and slavery? Please. Slavery is expressly forbidden by the Constitution and child molestation has truckloads of case law precedent.
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CongressCritter™: Never have so few felt like they were owed so much by so many for so little.
I'll respond :)
1. You reject "reasonable interpretation of the law" in favor of "rational interpretation of the Constitution." You must be ascribing to me something that I'm not, or there is some other misunderstanding. In my own mind, reasonable and rational are synonymous, or nearly so. And the Constitution is law. But our federal judges interpret other law--statutory, common, treaty...
2. YOu say my examples are "simply foolish." I'm guessing I wasn't clear. These are examples of moral conclusions that I think you, I, and nearly everybody, at least in our time, would consider grossly erroneous. I was not proposing them as examples of possible judicial decisions (though come to think of it, there are some radicals who favor the "right" to engage in intergenerational sex--about as radical as someone favoring same-sex marriage was fifty years ago).
These examples were designed to pose a question--whether someone who thinks grossly evil things are good things is the same kind of individual who is good at interpreting the Constitution or other law. I grant that at one level, it may appear the law-reading involves intellectual virtues wholly different from those involved in reaching moral conclusions. I present those examples as possible challenges to that assumption.
Again, if someone truly believes that decapitating infants is a good or indifferent thing, I suspect that such an individual
"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke
Your worries about McCain are well-founded.
Consider that when the Democrats filibustered Miguel Estrata's nomination to the federal court of appeals, McCain criticize the Democrats' tactics one bit. Later, he said that he would oppose any attempt by the Republican leadership to force an up or down vote on Bush's judicial nominees over the objections of the Democrat minority.
McCain said that the Bush shouldn't nominate people that are so controversial that they get bogged down in the Senate.
That was when the Democrats only had 45 Senators out of 100. So, it's a reasonable assumption that McCain would nominate people pre-approved by Chuck Schumer and Pat Leahy.
Remember when in 2000, McCain denounced Pat Robertson and Jerry Falwell? One of McCain's biggest supporters in the 2000 primaries was former New Hamsphire US Senator Warren Rudman. Rudman was the one who recommended that the original President Bush nominate New Hampshirite David Souter for the US Supreme Court. And Rudman wrote a book mentioninng that he, Rudman, didn't want Roe versus overturned.
Also, in that 2000 race, McCain briefly took the position that Roe versus Wade should not be reversed but then quickly backed off of that statement.
When you add it all up, a McCain presidency would likely result in more liberal judges elevated to the US Supreme Court.
If you think Rudy will choose any path just to "avoid a fight" you really don't know anything at all about Rudy.
Fortuna Favet Fortibus
He'll fight for alot of stuff. I don't argue with that. But we have reason to suspect that he won't fight for conservative judges.
"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke
Rudy is first and formost a prosecutor. He probably has more experience actually dealing with judges than anyone who ran for president since Thomas Dewey. And I think he (and any prosecutor) has a real and genuine loathing for judges who do not follow the law but instead make things up as they go along or try and create a utopian world.
Rudy has promised to appoint strict constructionist judges - and I believe his comments regarding constuctionists and Roe v Wade to be immaterial to that promise. He has appointed Ted Olsen to head his judicial searches and I don't know of any conservative who would question Olsen's bona fides. If he were younger he would be a top choice to be appointed to the court. And Rudy has seen first hand what happens to the base when a non entity like Miers is appointed.
Chances are, Rudy's first appointment would not be to SCOTUS but to a lesser court. Sure as shooting the Senate Dems led by Schumer will make a fight of it. And once they do, Rudy is all in. And every judicial appointment after that will be a battle.
As has been stated above, there's a very good chance that the Senate will be Democratically controlled. If we want conservative judges we are going to need a president who is willing and able to fight for every one. We have no better figher than Rudy.
Fortuna Favet Fortibus
You are aware of Rudy's record of judges in New York City? He boasted of that record last year and called those people "strict constructionists." He may do better at the federal level of course, especially with different advisors; but that is something to keep in mind.
The Mayor of NYC does not appoint judges to decide constitutionality of issues. He appoints judges to three courts: the Criminal Court (which handles minor infractions), the Family Court, and the Civil Court. In addition, the process is designed to be insulated from political influence. An independent panel reviews applicants for each opening and recommends 3 persons to the mayor who picks one.
Did some of the people Rudy picked make boneheaded decisions? Certainly. But for the most part, Rudy picked former prosecutors and law and order types to fill the vacancies.
Is Rudy perfect? No. But any conservative who wants to vote in the primary has to take a leap of faith on any of the candidates. (eg Mitt's position changes have been amply documented, McCain with amnesty, voting against tax cuts, and throwing good judges under the bus, Huckabee with taxes, and FDT with supporting CFR.) I choose to believe Rudy (just as I also believe Mitt and FDT). If you don't, fine, but this part of the thread started when someone opined that Rudy wouldn't pick good judges because we wouldn't be willing to fight. If Rudy picks a lousy judge, it won't be because he was running from a fight.
Fortuna Favet Fortibus
"One solid conservative after another?" Are you serious? How many "solid conservatives" do you think there are from whom to choose? The legal establishment is mostly liberal.
Besides, I don't think one can evaluate the degree of "moderate-ness" of most people who are qualified. There isn't usually a whole lot that reveals much, especially for people who have not been serving as judges before. Indeed some "conservatives" could be disasters (former Judge Luttig, for example).
I don't believe Democrats would "fold." I don't think they will spend much political capital either since nominees need only be denied a hearing. Whether a President will just let a seat go vacant is a good question and one the candidates have yet to address. If I recall correctly, Reagan gave in after his first TWO were rejected. Today though, I think the Democrats would just refuse to schedule hearings in committee.
Alito and Roberts have already established their bona fides on campaign finance with the Wisconsin Right to Life case, and they have given very heartening signs with regard to substantive due process (and stare decisis) in the context of partial birth abortion. The point is not moot; and the appointing president will matter.
The point is not necessarily moot because of Alito and Roberts but because of the Senate, the drop in cert grants, and the lack of potential future cases. The Senate will not confirm anyone palatable to conservatives. The Supreme Court has become extremely stingy with regard to cert grants. It will not grant cert to a case solely for correction. If it did, the cert grant would predict the outcome.
I think you are jumping to conclusions with Roberts and Alito. You have to read the reasoning in the written opinions rather than the bottom line results. As I recall, Roberts and Alito had engaged in "faux judicial restraint" in CFR. Also, substantive due process is quite broad in the scope of cases it covers. Nowhere was such a term mentioned in the partial birth abortion ruling. The ruling also explicitly stated that no prior case was being overruled. Also, though perhaps for good reason, Alito and Roberts did not join the concurrence of Thomas and Scalia. In any event, it's irrelevant to this response.
They cannot oppose everyone, so the ability of the President to be persistent about top quality conservative appointments is critical. There are lessons to be gleaned from the experience with nominating and confirming Justice Alito.
With regard to Wisconsin RTL and the judicial restraint shown by Alito and Roberts, yes, I have read the opinion, and yes, there were good reasons for the restraint. Don't worry. The dissenters were all convinced that Wisconsin RTL overturned McConnell. Alito and Roberts will gladly oblige them and prove them right.
"People will not look forward to posterity who never look backward to their ancestors." -Edmund Burke
That may be, but then the blame will just shift to the President for selecting people "out of the mainstream." Either way, it is inevitable that the President will eventually get someone acceptable to Democrats just like Reagan did with Kennedy. However, that person will likely not be acceptable to a significant number of conservatives.
They wanted to do the same with Alito, but it was hard to figure out how a judge with 15 years experience, rave reviews from everyone, solid academic background, etc. was "out of the mainstream". We have comparable Supreme Court candidates still out there; we just need a president who cares enough about the role of the judiciary to choose the right judges.
The situation with Alito is not comparable because Republicans held a 55-seat Senate majority. It didn't much matter what most of the Democrats thought. He would not have been accepted by the judiciary committee, much less gotten a cloture vote, in a Democrat-controlled Senate.
Democrats can and will reject anyone who does not have a record or make a statement in support of their positions, especially now that they have stepped up their demands. The odds that any of the current Presidential candidates can and will nominate enough "comparable Supreme Court candidates" in a row are slim to none. I don't know that they are out there. If one looks to the lower courts, most such candidates will have just barely passed through a Republican-majority Senate.
lamest arguments for what his judicial philosophy would be. I think this is probably about one of the lamest attacks against a canidate, it ranks right up there with the complaining about Huckabee claiming to have a theology degree when he really had a Religion degree.
There are other reasons to support a building named after O'conner than her Judicial philosophy. Like the fact that she was the first woman Justice. She was a well respected national icon that came from Arizona, its not exactly shocking that a senator from Arizona would vote in favor of this. Its possible to respect someone for their work in the Supreme Court without agreeing with their philosophy. Bush had kind words for O'conner when she retired and he seemed to do okay in picking justices. The bigger issue is that McCain supported pork. Trying to pick out McCain's judicial philosophy based on this, though is simply pathetic.
Sandra Day O'Connor was bad on a number of issues, and I abhorred her jurisprudence but she definitely wasn't "horrible" in all of her opinions and writings as you suggest. She was the conservatives' deciding vote in cases like Lopez (probably the most important case of the Rehnquist Court), a school choice case, Boy Scouts of America, and Bush v Gore. She also wrote a darned good dissent in Kelo v New London. She's definitely no Thomas or Scalia, but she's not David Souter either.
"The Constitution was made to guard the people against the dangers of good intentions."
Well done is better than well said. —Benjamin Franklin
said something which probably trumps a lot of our arguments on judges, that being that there could and most likely will be 55 democratic senators in place. To be honest almost any nominee will be shot down, no matter whom it shall be. That said, I am specifically referring to the first nominee of any Republican president, especially if it is to take the place of Ginsburg or Stevens.
It leaves one to wonder, wouldnt it make sense for whomever the new R President is, to nominate Orin Hatch for the supreme court. The Senate would have a hard time shooting down one of their own, and we could probably count on Hatch to maintain his conservative stance on issues over time on the court, not veering left as so many have done before him.
Just a thought.
"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
-- John Adams
That's an interesting concept. Has a Senator ever been appointed before?
It does leave questions regarding the separation of powers though. O'Connor came from a legislative branch of government and acted as a legislator (and compromiser). I suppose Hatch is not quite as liberal as O'Connor had been.
I have said before that I think Ron Paul might do well on the court if he weren't in his 70's. He seems to take more of a judicial role than a legislative one.
Actually, up until the 1940's it was relatively common to have senators appointed to the Court. I think Hugo Black was the last in that line. The present Court is the first in history to have every member appointed from the federal appellate bench.
1. Rudy doesn't back down from fights.
2. When Rudy nominates a strict-constructionist, it will be much easier to shift the debate from Roe to Kelo and to the function of judges in general [they should interpret law, not make it up]. Even with 55 Democratic Senators, I think the left will lose the debate, provided it can be focused on Kelo.
McCain offers Goldwater Republicans just what we want -- sensible fiscally conservative judges who will uphold the separation of church and state. Only 1/6th of Americans are in favor of outlawing abortion, which means there are a good many Republicans who are part of that 5/6th who believe in choice and other just rights for women. We've seen how the Southern Baptist conference has taken rights away from women, banning them from preaching and it's time to start purging that kind of thinking from the Republican party. I'm fed up with neocons and evangelicals, and I'm hoping someone like McCain will bring the party back to its senses.
The problem with Roe v. Wade is that it allows the Supreme Court to make social policy without regard to the constitutional text, and the problem with Casey and Lawrence and other cases building on Roe is that they do not even bother pretending that the Constitution matters.
Your abortion numbers take some gymnastics to believe. 45-50% of the country describes themselves as "pro-life." A majority of Americans agree that abortions in the third trimester should be illegal (disallowed by Roe), that abortions due to financial hardship should be illegal (disallowed by Roe), and that abortions not for reasons of rape, incest, and life of the mother should be illegal (disallowed by Roe).
And judges aren't talking about making abortion illegal, the question is whether the Constitution makes having an abortion a Constitutional right? That's a different question. And even many pro-abortion thinkers admit that there is little evidence of such a right in the Constitution. That's why they rely on stare decisis now instead of the Constitution itself.
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generally think that Roe v. Wade is bad law, a poor decision based on sentiment rather than rule of law. Most Goldwater Republicans would favor sending it back to the states for them to decide since it is just that, a state's right issue. Each state will then choose whether to keep or ban the practice. That would be at the core of what a Goldwater Republican would believe.
As for your statistics, if youre going to quote them, please post the link. I would have to say those are extremely skewed and do not accurately reflect popular opinion, except maybe in SF, LA and NYC. Also, trying to frame your argument as a "woman's right" is just textbook DNC tripe, .Abortion is certainly about more than a "woman's rights", there are others involved, or who should be involved in the decision, specifically the father who has a biological tie to the fetus.
"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
-- John Adams
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Disclaimer: I am a member of a state-wide executive committee that is affiliated with Governor Mike Huckabee's campaign for the GOP presidential nomination
For starters, you do an excellent job of presenting yourself as an idiot. I don't know if you really are or not, but the evidence above is pretty convincing.
Just a couple of points.
1. Provide a link for your 1/6 statistic. I strongly doubt it. Most recent polls show a plurality to a majority who favor banning abortion except in the instance to save the life (as in "life", not "health") of the mother and rape/incest.
2. Most of us who want to see Roe overturned want it gone because it's "bad law". It's bad precedent and the concept that led us to Roe could justify about any sort of outrageous law you could imagine. Justices cannot be allowed to add stuff to the Constitutional text - or refer to "international law" - when deciding cases in the US Supreme Court.
3. The Southern Baptist Convention hasn't taken any "rights" away from anyone. (I am not SBC, our Pentecostal church as a woman pastor, and I happen to be just barely smart enough to understand why the SBC holds the postition they do in reference to women pastors) SBC is private gathering of like-minded folk who are free to make up the rules for their organization pretty much as they see fit. They have Biblical grounds for barring women from Senior Pastor roles whether you like it or not. If you don't, go somewhere else or don't go at all.
4. Just exactly who is attempting to "ban" women from roles in the Republican Party? It ain't the neocons, given the prominent role of folks like Condi Rice in this administration. We've had women run for President, they didn't fare much better than it appears Hillary will with the other Party. Find the "right" candidate, she'll win the nomination.
And for the record, I'm getting fed up with idiots.
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CongressCritter™: Never have so few felt like they were owed so much by so many for so little.
In addition to the above replies, let me add that this is not a religious issue. I don't care what any church says about it. It does not take any religious belief to see that abortion is the violent killing an inncoent child. That is something that should be restricted by law.
It's certainly not a Constitutional "right," especially one for women. The only ones who got any new "rights" out of it were people with medical licenses. The protection of innocent human life should take precedence over any "right" for so-called "doctors" to determine what constitutes legitimate medical practices.
Public support is irrelevant in court decisions. If you think otherwise, maybe you should go back and review the roles of the three branches of government. If the people support something, then let them vote for representatives and senators who support the same thing.
"Separation of church and state" is a hallucination of Thomas Jefferson, who was busy being our ambassador to France when the Bill of Rights passed Congress.
You do know that 'separation of church and state' isn't in the Constitution, don't you?
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Finrod's First Law of Bandwidth:
A picture may be worth a thousand words, but it takes the bandwidth of ten thousand.
The idea is in the First Amendment (though not as most people think they understand it):
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Separation of church and state, as promoted by Jefferson and, before him, John Locke, is the idea that government won't interfere with anybody's freedom to choose and follow whatever religion they choose.
Not to go off topic.
If the nation is so overwhelmingly pro-choice, then why must your preferred pro-choice policy be protected by one of the worst activist decisions in Sup Court history, a decision w/o a shred of Constitutional merit?
If public sentiment is so strongly pro-choice, then you shouldn't have a problem jettisoning Roe. Not only would it be the proper thing to do from a Constitutional point of view, it would also result in no real change in the availability of abortion.
We often hear about how non-social cons want the GOP to do this or do that to make them feel welcome. But building a big tent requires more than social cons to compromise. At a minimum, pro-choice Republicans (or generally socially liberal Republicans) must agree on the proper role of the courts, and on the superiority of originalist jurisprudence. You have to at least agree that the courts should refrain from imposing your leftwing views on abortion, marriage, and other social issues. It is, afterall, the usurpation of such issues by the courts that sparked the national Culture War and made it so bitter. The only way to make these issues less of a big federal deal is to reign in the Courts, and return them to the proper democratic/popular authorities at the state level.
sense. It seemingly would be inconsistent to uphold CFR and then reject Roe. In addition to your dead on substantive due process analysis, Giuliani could care less what the NYT or WaPo thought about his selections. McCain might let them vet his.
Is he has Fmr. SG Ted Olson advising him on the Judiciary. Should Rudy become President I would almost expect Olson to be the first one put up when and if a vacancy happens.
As I have said before, Rudy has redefined the term "strict constructionist" to include people who view precedent as equivalent to the Constitution. He said that it would be "okay" if Roe were overturned because a strict constructionist viewed it as being unconstitutional and said that it would also be "okay" if a strict constructionist upheld it as precedent. Now, given that the Senate could very well have 55 or more Democrats and that those Democrats care far more about abortion than the rights of detainees or, well, any other issue, do you really think Rudy would nominate someone who would overturn Roe? The Court is the Democrats' number one priority, and Rudy, I expect, would be more than willing to cut a deal for help with war on terror and homeland security issues. I won't defend McCain on this, but strictly in terms of Rudy, that scares me.
First, he [Giuliani] has no stake in any issue before the Supreme Court that is comparable in any way to McCain's stake in campaign finance.
Yes, he does. The War on Terror.
Faced with a choice between two judges, one of whom would uphold Roe and Casey, but also side with Breyer and Souter to obstruct the use of tough interrogation techniques and insist that terrorists captured abroad are afforded Fifth Amendment rights and one who would overturn Roe and Casey and allow the administration plenty of leeway in the GWOT, I think Rudy would choose the latter.
It is my guess - and I don't speak from any personal knowledge here - that Rudy doesn't feel very strongly about abortion but is passionate about GWOT.
McCain, by contrast, though solid on some aspects of GWOT, would have no concerns about SCOTUS overturning his policies and would, I agree, be very careful to appoint people who would uphold his signature legislation from his Senate career.
Quentin Langley
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I think you are correct but mostly because neither he nor any other Republican candidate (except Duncan Hunter) would be likely to know what most potential nominees would do with Roe and Casey. The nominees themselves may not know. If it was known that the nominee would overrule Roe and Casey (or even disagreed with them without a promise to uphold them), one can be absolutely certain that the Senate would not ever confirm the nominee.
McCain against the Bush tax cuts in 2001 and 2003.
McCain for McCain-Feingold and limiting free speech.
McCain for human embryo stem cell research.
McCain thinks pharmaceutical companies are bad guys - voted for Sarbanes-Oxley that is hurting small business.
McCain is against repealing the death tax.
McCain supports forced government regulation of greenhouse gas emissions.
McCain voted against drilling in Anwar.
McCain would raise social security taxes.
McCain would allow invaders [illegal immigrants] to stay indefinitely after [haha] paying a fine, BUT don't you dare call it amnesty!
McCain would rather thousands [millions with a nuke] of Americans die than pour water up a terrorists nose for thirty seconds - something all SEALS go through as part of their training.
McCain thinks being chummy and cooperating with Ted Kennedy is cool - maybe they can vette Supremes together.
McCain would be especially untrustworthy if he decided not to seek a second term. Then he'd feel no pressure to do the right thing by nominating and fighting for good judges. Generally speaking, I just can't see him fighting for a Alito-type judge, and since it would take a herculean effort to get a conservative confirmed in this Senate or the next one, I would not be confident at all with McCain.
Giuliani completely undermines his claims about the type of judge he's appoint when he says absurd things like how a 'strict constructionist' could be pro-Roe. I mean, that's just crazy, unless you think Kennedy and O'Connor are strict ocnstructionist. And we shouldn't forget that O'Connor is what Schumer and the NYTimes defines as a 'mainstream conservative.'
Of course, none of this should matter this much anyway, because the Sup Court was never intended to have as much power as it has given itself, and which the other branches of govt have allowed it to get away with taking. The only real way to halt judicial activism is to successfully challenge judicial supremacy and take back the power the courts have usurped. And since such a challenge is highly unlikely, we'll probably never be rid of leftwing judicial activism.
You are absolutely right about McCain and about the other branches letting the courts getting away with too much. What's more, the other branches go out of their way to appease the judges, often going well above and beyond the actual requirements the court ever set forth for them. We saw that with Mitt Romney, and we're seeing it now with the death penalty. Simply because a case is pending involving one form of lethal injection, all the states have halted all their executions waiting for the "blessings" of five justices or ending the death penalty altogether.
I'll admit that I don't think Rudy's views on Roe are relevant because, as I stated earlier, I don't believe any of the possible candidates he or any other Republican would select would have any relevant record supporting or opposing the ruling.
1T. Mitt Romney
1T. Fred Thompson
3. Ron Paul
4. Mike Huckabee (Though I fear a Harriet Meirs re-run)
5. Rudy Giuliani (I fear Maureen Mahoney)
6. John McCain (I fear another O'Connor or Kennedy at least as much if not more than a Mahoney)