If there's one thing I've learned in my first two months of law school, it's that Supreme Court opinions are often as based on real life as your favorite Dr. Seuss book. This is true regardless of whether the opinion was was written by a liberal or a conservative. I guess that when you assemble nine brilliant people who disagree with each other on absolutely everything and give them an enormously powerful job from which no one has ever been fired, absurdity is bound to follow.
But we can't just dismiss the Supreme Court, can we? They are at the center of so many of our political discussions, since they are nominated by the President. Because the Court is such a crucial topic, I want to spend some time on it. This is going to be the first post in a series about why I don't think that trying to get "strict constructionist" judges nominated to SCOTUS (the Supreme Court of the United States, as we abbreviate it in law school parlance) is a good way to fight abortion. I'll start with some practical considerations, and eventually finish up with an explanation of why I disagree with strict constructionism generally. As always, feel free to agree or disagree in the comments section.
I'll start with pragmatics. We as Christians have tried the strategy of Supreme Court "stacking" for years, and it hasn't got us anywhere close to stopping abortion in this country. Consider this: the GOP, supposedly the party of the pro-life cause and strict constructionist judges, has won 7 out of the last 10 presidential elections. They have been wildly successful in the last 40 years, to say the least. In that time, they have obviously had many opportunities to nominate SCOTUS justices. Today, of the 9 justices, 7 of them were appointed by a Republican president. Only Ginsburg and Breyer were nominated by a Democrat (Clinton).
Sadly, despite many Christian conservatives best efforts at the Supreme Court tactic over the last 35 years, only 3 of the 7 Republican justices have explicitly and publicly stated that they would vote to overturn Roe v. Wade: Alito, Thomas, and Scalia. Chief Justice Roberts, to my knowledge, has never stated any such thing, and my reading of his public statements is that he is a 50/50 chance, at best, despite the fact that his personal beliefs as a Catholic are opposed to abortion. This is a very high rate of failure for what is the only anti-abortion political strategy that gets serious attention from Christians.
It's also worth pointing out that the infamous Justice Blackmun, who penned the majority opinion in Roe, was a Republican nominee.
I personally think it is indicative of how little Republican politicians actually care about abortion. By my count the last 5 Republican presidents have chosen a justice of at least dubious feelings about abortion. Given the track record of his party and his own "nuanced" position on the matter, do you trust John McCain's hints that he will pick judges that would overturn Roe v. Wade?
As always, I look forward to hearing your thoughts.
In the Next Post: Even if we overturned Roe, would it accomplish anything?
But we can't just dismiss the Supreme Court, can we? They are at the center of so many of our political discussions, since they are nominated by the President. Because the Court is such a crucial topic, I want to spend some time on it. This is going to be the first post in a series about why I don't think that trying to get "strict constructionist" judges nominated to SCOTUS (the Supreme Court of the United States, as we abbreviate it in law school parlance) is a good way to fight abortion. I'll start with some practical considerations, and eventually finish up with an explanation of why I disagree with strict constructionism generally. As always, feel free to agree or disagree in the comments section.
I'll start with pragmatics. We as Christians have tried the strategy of Supreme Court "stacking" for years, and it hasn't got us anywhere close to stopping abortion in this country. Consider this: the GOP, supposedly the party of the pro-life cause and strict constructionist judges, has won 7 out of the last 10 presidential elections. They have been wildly successful in the last 40 years, to say the least. In that time, they have obviously had many opportunities to nominate SCOTUS justices. Today, of the 9 justices, 7 of them were appointed by a Republican president. Only Ginsburg and Breyer were nominated by a Democrat (Clinton).
Sadly, despite many Christian conservatives best efforts at the Supreme Court tactic over the last 35 years, only 3 of the 7 Republican justices have explicitly and publicly stated that they would vote to overturn Roe v. Wade: Alito, Thomas, and Scalia. Chief Justice Roberts, to my knowledge, has never stated any such thing, and my reading of his public statements is that he is a 50/50 chance, at best, despite the fact that his personal beliefs as a Catholic are opposed to abortion. This is a very high rate of failure for what is the only anti-abortion political strategy that gets serious attention from Christians.
It's also worth pointing out that the infamous Justice Blackmun, who penned the majority opinion in Roe, was a Republican nominee.
I personally think it is indicative of how little Republican politicians actually care about abortion. By my count the last 5 Republican presidents have chosen a justice of at least dubious feelings about abortion. Given the track record of his party and his own "nuanced" position on the matter, do you trust John McCain's hints that he will pick judges that would overturn Roe v. Wade?
As always, I look forward to hearing your thoughts.
In the Next Post: Even if we overturned Roe, would it accomplish anything?
10 comments:
Ryan,
Thanks for the post. I’m glad you have addressed this publicly.
However, I do believe McCain has a chance to appoint judges who would overturn Roe v. Wade. Here is why.
1. There is a bit of historical revisionism in your post. Blackmun was indeed appointed by Nixon, but since abortion was largely illegal at the time, (pre-Roe), it doesn't make sense to say that Nixon was not pro-life. The current, passionate pro-life vs. pro-choice debate was not part of American political discourse in the early 70s, and really, I would argue, not until the failed nomination of Robert Bork in 1987.
2. I think your argument has some problems, since you don’t get into specifics. Perhaps you could respond to this. Before Alito and Roberts, I was right there with you. I voted for the Constitution Party twice because I was also fed up with the GOP. (That didn’t make me run to the party that has no pro-life platform, but that is another story). But with Alito and Roberts clearly on the side of life in the Partial Birth issue last year, I think it is at least plausible, or highly likely, or at least more likely, that it would get overturned if say, Justice Stevens were to be replaced with another ALito or Roberts type judge. Again, only if McCain wins.
3. You did not mention Anthony Kennedy, who was the “swing” vote on the Partial Birth Abortion issue in 2006/7. Kennedy plus another Roberts or Alito would definitely (again, not absolutely) swing the court to overturn any challenge to Roe.
4. So, again, if your purpose is save babies lives, and to make abortion illegal, and work at the grassroots level until then, I believe, my brother, that you are not on the right side of this issue. At least on the legislation aspect. I admire you and your wife’s work at the grassroots level. Always have. But, dude. Voting for Obama in this election in this time with the judges he would appoint would most likely make Roe v Wade the law of the land for decades. If Roe is overturned (and this is your next post, I know) states will make their own abortion laws, conservative states will outlaw it, liberal states will allow it, yes, true enough. But more babies will be saved.
5. May I use a football analogy? The pro-life movement is on the five yard line. It’s been a long forty year struggle to get this far. We’ve had some bad players who betrayed us (Souter, O’Connor, Blackmun, Stevens, etc.) but now the team is one player away from scoring. We are that close. At least McCain is willing to throw towards our end zone.
Again, I write this not because I think I can change your mind, but because, I want to help balance out what you are saying with some more information. I think you are on the horns of a dilemma here, Ryan. You know abortion is murder. You know Obama supports it remaining legal. You know a vote for Obama will kill the legislation aspect of the pro-life movement from the national level for decades.
You’re mad the GOP isn’t pro-life enough so you support the most pro-choice candidate in history?
Will that really help anything?
Just a question from a friend.
Scott,
Thanks for challenging me to think things through, as always.
In response:
1. I maybe should have elaborated my point on Blackmun. Obviously abortion was not on the forefront of Nixon's mind when he tapped Blackmun. But here's my point in picking on tricky Dick for this one: the time when Blackmun was nominated was a time of great moral upheavil in this country. I think that while it would have been impossible to predict that Roe specifically would come before the court during, it was obviously forseeable that moral issues would. But rather than pick a great ethical jurist or constitutional scholar, he picked a guy who's entire career had been spent on business litigation and tax matters. He was the Harriet Myers of his day, except obviously he made it to the court.
I think this is clearly illustrative of the main GOP problem: they have always been more concerned with economic matters than with moral matters. Roe didn't fall from the sky: Abortion had been a heated topic of debate, if not in the public political discussion then in hushed back-parlor whispers, since at least the early fifties.So many other cultural issues were at stake in this time, drugs, homosexuality, the war in Vietnam, etc. that I think it's fair to say that Nixon dropped the ball on this one, just like he dropped the ethical ball in his personal life.
So, I apologize if my brevity was misleading to anyone! It was not intended to be.
Next points on the next comment...
2. (continued from last comment) I think you have to put yourself in the absurd mindset of SCOTUS to get what I'm trying to say here: I believe that, as untrue as it seems to us in the stands, Kennedy and Roberts see partial-birth abortion and "regular" abortion as two seperate legal matters. The text of Roe makes it explicitly clear that third-trimester abortions were not being ruled on. Therefore, I think Kennedy and Roberts voted on the presumption that this was a "matter of first impression", or something that the Court had not ruled on before. Because both of them have been such strong advocates of the principal of stare decisis, or letting precedent stand without a compelling reason to do otherwise, I'm not convinced Roberts would vote to overturn Roe. This is especially true because Roberts failed to join in the seperate concurring opinion written by (crap, I can't remember now, was it Scalia?) that specifically said that Scalia, Thomas, and Alito would also vote to overturn Roe.
So, in brief: could Stevens be replaced by another Alito? Maybe, if you take McCain at his word, but I think this would still only bring us up to four. Ginsburg and Souter will hang on for dear life (literally) if McCain is elected.
Next point, again, next comment...trying to break this up a little :)
3. Did my comments in #2 address my opinion enough to explain why I disagree here?
4.I personally think that Roe is going to be the law of the land for decades to come no matter which man wins this election. We must remember that in a democracy, laws flow downstream from culture, not the other way around. At present, America in general has a culture that affirms abortion and the American church has a culture that is largely apathetic to this issue. Sadly, bro, I think that we are exceptions rather than rules in how much this matters to us. I saw a poll recently that said 3% of women think abortion is a major issue in this election. The poll made no distinction between pro-life and pro-choice women, that's just 3% of women period. Until we change those cultures no politician, McCain or anyone else, is going to go out of his way to appoint people to overturn Roe or do anything else for the pro-life cause in general.
5. To continue the analogy, I think the pro-life movement is on its own 5 yard line rather than the other team's 5 yard line, but is so beat up and dazed from the shelacking it's taken from both parties that it doesn't know the difference. We need a new offensive line to protect us, and some new plays to move us down the field, rather than throwing another hail mary to the GOP.
More thoughts to follow in subsequent posts. Not that I think I will change your mind either, but I really do think that iron sharpens iron, and I see this as a fruitful discussion rather than political bickering, even if no one at all changes their mind.
Aside from all of this, given that the prospects are looking bleaker and bleaker for the very, very senior senator from Arizona's chances, have you considered voting Constitution again? Seriously, I think that if pro-life Christians really cannot in good conscience vote for Obama, they ought to at least consider it. There's something to be said for sending a message that if the GOP won't be more serious about this, they can't have your vote. If enough people avoided the self-fulfilling prophecy of "no one ever votes third party" and the CP got to 5%, then the GOP would really have to contend for pro-life votes, and that might just get us somewhere.
Sincerely,
Ryan "If you guys would have nominated Brownback, I probably would have voted for him" McLaughlin
Why do we favor judicial activism at all? Why do we want to give all sweeping powers to this branch or to the executive? and why are nietzsche 'will to power'bars 3 dollars each plus shipping.
and as far as third party voting goes, we in the ron paul camp had a saying. Vote for Ron Paul, get a free country. Why are we so hung up on voting for someone who represents our views only ever so marginally because they have a chance to win. Fine, you voted for the guy that won, did you win?
I have been out of cyberspace for a while, and this is my first look at this blog. Sorry it took so long.
Well for thing I think you really straw manned the opposing side quite a bit with this little number:
"This is a very high rate of failure for what is the only anti-abortion political strategy that gets serious attention from Christians."
I think the Christians primary anti-abortion strategy is an attempt to influence culture. The grass roots stuff. And as you mentioned this is a political strategy, one that you pursue.
However I don't think we can put all our eggs in one basket on this issue. Just like trying to get a judicial ruling alone will not solve the problem, simply trying to influence the culture alone will not solve the problem either.
At some point direct political action must take place and I don't see any reason why we should in a sense fall back and regroup.
I am not a fan of judicial activism (who is) so there is a part of me that wonders if even trying to pin our pro-life hopes on SCOTUS is even ethical. I however can't see a way around it. At some point the vote must go to the states (I know many of them will still vote pro-choice but it's a start) and I don't see how that can take place with RoeVWade as is.
I could simply restate what has already been said by so many about why I don't think electing a man so openly and almost militarily pro-choice is a bad move for the country.
However I'll just say I agree with it mostly but my recommendation would not be to vote for McCain. To do so would be (for you) to vote against your conscience which I would never ask you to do. However I would seriously consider looking into voting 3rd party. Chris made a great point about this. I personally cannot is good conscious vote for Obama but I am not a fan of McCain either, so I am considering it myself. I know it hard to find a 3rd party that is not in the nut house but it may be worth looking.
Even accepting your premise that Obama's economic policy will reduce poverty (I don't think it will but that's another argument) and thereby reduce abortions, I feel this thinking is very short term. In the time he is in office I do believe if he does anything about abortion at all (I can only pray he really cares as little about it as McCain) it will be to push the culture in favor of abortion. What worries me more is his plan to use more tax money to pay for abortions and help fund clinics, thereby using your and my money to finance abortions.
However one thing is certain if Obama is elected I will pray fervently that you were right, and I was wrong.
Hello Champaigne (Jeremy for the uninitiated),
At times I loved your comment. Often it was if you said "but we really do disagree" and then said what I have said all along.
I too think that our primary focus should be on changing culture. I too don't think we should rely on SCOTUS (read my latest post). I too have serious problems believing McCain's prolifeitude, and have counseled people on this very blog: if you can't in good conscience vote for Obama, think about a third party guy.
I do wish to dispute one or two things you said, however. First, I love "judicial activism", and I hope to explain why in the next couple of days. Actually, judicial activism is a myth created by the right. It doesn't actually exist anymore than Santa Claus or my little brother's good looks. Secondly, Obama has never, ever once said he would use tax money to pay for abortions, that has never come up this election season. That is the consumate Republican boogeyman.
Oh, and Obama's policies will be fantastic for the economy. Two words: Keynesian economics. Take that, Ronald Reagan!!! You may place your supply-sided sillyness where the sun don't shine!
I have to say, I am really on the fence and pray that God will clearly directly me by Nov 4. I am between Obama and Baldwin. I know Baldwin cannot win, and yet I am not 100% for Obama. OTOH, I am 100% against the McCain/Palin ticket....with the largest part of my objection being Palin. I am truly amazed at how so many Christians have backed her w/o question based purely on her claim to be a Christian. I find the idea of her in the White House frightening. At any rate, I have learned a lot from the discussions and pray, as I know you all do, that God will direct the outcome regardless who among us is right. Keep diagloguing!
Patty,
As a butcher of the English language, (which as you know I inherited), even I am impressed by the use of the phrase "keep diagloguing!" Love ya.
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