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September 25, 2005 - What We Forbid

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So John Roberts will be the next Chief Justice of the Supreme Court.

If you got to the Google news aggregator - that thing that uses infobots to continually scan the news and provide links to thousands of stories in all the major categories of news you can imagine - and you put "Roberts vote count" in the search bar and hit the return key, as of late Wednesday, September 21, you'd get about fifteen hundred links.  (Try it here.)

Here are some:

Dem leader of Senate says he'll vote no on Roberts (San Francisco Chronicle)
Democrats Announce Support for John Roberts for Supreme Court (LifeNews.com)
Democrats revive filibuster threat (MSNBC)
Democrat plans no filibuster on Roberts (Atlanta Journal Constitution)
Why Roberts Should Not Be Confirmed As Chief Justice (San Francisco Chronicle)
Should Democratic Senators Vote to Confirm Roberts? (TPMCafe)

That last one is good. It's by Robert W. Gordon, a professor of law and legal history at Yale - and a graduate of Harvard College and Law School, if that sort of thing impresses you. He thinks the answer is "no," the Democrats should block the Roberts nomination - but won't pretend it's an easy call.


There are two kinds of arguments for Yes, the political and the substantive.

The substantive argument is that Roberts really isn't that bad, and is about the best we're going to get out of George Bush. He has glittering credentials, is obviously very smart, and claims not to be an ideologue. He says he respects precedent, is deferential to legislatures except when they exceed the clear boundaries of their authority, has no doctrinaire method (such as "originalism") for interpreting the Constitution, and will decide cases one at a time. He says he has no particular personal or political views, at least none that will influence his decisions. He admires his old boss Judge Henry Friendly, of whom it was said that nobody could tell if he was a liberal or conservative.


On the other hand:


Roberts knew exactly what he had to say in his job interview and he said it. He was playing for the Democratic swing votes, not just the majority's. He made strategic, but mostly symbolic, concessions to their views. He knows people are worried about his views on presidential power, so he praises Justice Jackson's opinion in the Youngstown Case, which gives a judge who wants to limit presidential power some categories and guidelines for doing it. He knows people are worried about his views on civil rights, so he distances himself from his younger self, the Reaganaut firebrand of the 1980s, and affirms his commitment to antidiscrimination and even some affirmative action. Obviously he knows people on both sides worry about how he will decide abortion cases, so while he recognizes that the case law establishes a "right to privacy", he won't say anything specific about its scope and application.

None of this however tells us much about what kind of judge he will be, except that he will be a rhetorically cautious judge - not a flamethrower like Scalia or an iconoclastic reactionary like Thomas who is perfectly willing to throw hundreds of statutes and cases overboard to vindicate an abstract theory of the Constitution. He will work within the received materials of case law and conventional argument. Unhappily those materials are not all that constraining, especially for a clever judge like Roberts. There are a hundred ways to read a precedent or a statute creating a right so narrowly that you can claim to respect it while whittling it away, or making it practically impossible for anyone to get a remedy for its violation. And when you read his testimony carefully, you see that he has not really committed himself to much of anything at all.


There's much more, the political part, but you get the idea.

For many not in agreement with the positions of the Christian evangelical right, now in almost total control of Republican Party and thus the government itself, the issue that is key is the issue of abortion rights - what they call state-sanctioned murder of unborn children, and the other side calls "choice," a decision best left to the woman and her doctor, and not the business of the government at all. The whole thing, the basis of the Roe v Wade decision, hinges on the "right to privacy" established in case law first in the 1965 Griswold decision - the highest court ruling the State of Connecticut really shouldn't be busting into the bedrooms of married couples and arresting them for having in their possession any form of birth control. The idea is there's enough in other parts of the constitution that allows one to infer a general right to privacy - some things are just not the government's business. That opened a can of worms. We got Roe v Wade, and recently the Lawrence v Texas decision - holding that the agents of the State of Texas had no business busting into the bedrooms of consenting gay men and arresting them for doing what they were willingly doing with each other. That ruling offended a lot of the righteous, or the self-righteous, who thought people shouldn't do such things.

The underlying problem has always been there. Some things the government can and should forbid - rape, murder, theft and assault and all that. Oh heck, add speeding and littering. No one, left or right, argues otherwise. No one argues some speech should be sanctioned - libel, slander, and the famous yelling FIRE in a crowded theater (when there is no fire, of course, as otherwise that might be useful). The problem is always around the edges, with things like "victimless crimes." Do you forbid gay marriage? It hurts no one - or it destroys the whole fabric of civilized society. Do you forbid the medical use of marijuana to ease pain? It actually helps people - or it is the first slip on the slippery slope that will make us a nation of drug fiends.

So what about abortion?

Digby over at Hullabaloo has a long explanation of why he signed a petition opposing the Roberts nomination. It seems right - but futile.  Roberts will be the next Supreme Court Chief Justice.  Digby ends with this:


... I believe that a woman's right to choose gets to the very heart of what it means to be an autonomous, free human being. Control of one's own body is fundamental to individual liberty. If the church believes that abortion is morally wrong it should instruct its voluntary membership not to do it. Individuals must always be allowed to follow their own consciences. But there should be no legal coercion on such a personal matter.

The only issue the government could be called upon to arbitrate is if the fetus has an equal right to life as the woman in whose body it lives. But there is really no argument about that. There is almost nobody who believes that an abortion is wrong if the life of the woman is at stake. Indeed, the vast majority (80%+) of Americans believe that abortion should be available at least in cases of rape or incest, so it is clear that the "abortion is murder" argument is illegitimate. No one can believe that it is moral to murder a person because of the way he or she was conceived, or by whom.

Therefore, the right of the fetus is not the real issue - the reasons a woman wants an abortion are the issue. This leads us to ask which particular circumstances are so difficult for a woman that she may be allowed to have an abortion. 80% or so of Americans think that rape or incest are such circumstances. But how about a failing, abusive marriage? A terminal illness? Five other children and no job? Being 43 years old and carrying a child with serious birth defects? Being a foolish 15 year old girl in love? Should we make exceptions for some of those? Any of them? Who decides? You? Me? John Roberts?

This isn't about murder and it isn't about the right of the fetus. It's clearly about controlling women's personal moral behavior. I don't think the government has any business doing that.

Unlike some others, I think it's quite likely that the court will overturn with these two new Bush justices as soon as they get the right case. This is simply too vital to the conservative cause. The notion that they want to milk it is quite right, of course, but I think they will happily run on abortion in individual states for as long as they can. Milking the issue seems to me to be much more likely if it's turned back to the states than if it's not.

John Roberts is a professional movement conservative at the very top of the food chain. His wife is the president of "Feminists For Life." He will vote to overturn and make women fight in more than half the states of this country for a basic right they've taken for granted for over a generation. It is depressingly likely he will be confirmed, but I'm glad to go on record opposing him.


That's pretty clear, but when I forwarded it to Rick, the News Guy in Atlanta, Rick took issue –


You say - "It seems right - but futile. Roberts will be the next Supreme Court Chief Justice."

Yes, but futility, or the lack thereof, isn't everything. I think of it this way: Doing what you believe is the right thing is the cake; being successful at doing what you believe is the right thing is the frosting on the cake.

Digby says - "Unlike some others, I think it's quite likely that the court will overturn with these two new Bush justices as soon as they get the right case. This is simply too vital to the conservative cause."

I disagree with Digby on this.

Roberts has already publicly affirmed his belief in the judicial concept of stare decisis (the idea that sitting justices should not blithely overturn past rulings that have established themselves as law, even if they personally disagree with them) and has also said he sees Roe v Wade as established law.

But I wouldn't be totally surprised to find him voting in favor of allowing some state to find exceptions to the constitutional right to abortion, eventually watering down its effectiveness.

"Indeed, the vast majority (80%+) of Americans believe that abortion should be available at least in cases of rape or incest, so it is clear that the 'abortion is murder' argument is illegitimate."

Okay, although I'm on Digby's side in his overall argument, I do have a philosophical disagreement with him on this.

First of all, as much as I do pay attention to Gallup polls, I don't base my core beliefs on them. (For example, didn't one such poll have over 70% of Americans believing in the existence of angels? And so does this mean that angels actually do exist?)

Second of all, if I WERE in favor of outlawing abortions, I would probably do so based on the belief that abortion is "murder," or should be seen as "murder" in the eyes of the law. And if I DID think abortion was "murder," I definitely would NOT make an exception for rape or incest. (And I guess not even if the mother's life were imperiled by giving birth - in which case, the mother's life being no more valuable than the child's, I suppose we should try our best to save them both, hoping for the best, but letting the chips fall where they may.)

By the way, another one of my positions on this subject is SURE to annoy those on the so-called "pro-choice" side, and I would guess this probably includes Digby: I never liked the label "pro-choice," since, if indeed abortion is wrong because it is "murder," then making a "choice" is irrelevant, since the law does not allow one the "choice" to commit murder.

But nor, on the other hand, should it necessarily be about the right of a woman to "choose" to do with her own body what she wants, since the law does not permit her to commit suicide, nor (in most places) to engage in prostitution. This is not to say a woman can't get away with doing either of those things, it's just to say that we already do allow our government to claim legal authority over such matters.

But wait! Don't get me wrong! I am NOT among those who think abortion should be outlawed!

My main reason for being "pro-abortion" (and you know what I mean by that) is something I rarely talk to others about, mostly because it's based on my own personal "religious" beliefs, such as they are, that hardly anyone else seems to share.

Although I don't believe in the traditional God that most everyone else seems to believe in, I do think that if there IS a God that helps us decide how we should act, both as individuals and as a community, then this God is everything in the universe and beyond, and that God's laws are how everything works.

So just as I know not to walk off a cliff, since that would not be good for me, I know also that my whole happy existence depends on the support of a healthy community, which in turn depends on healthy adults raising healthy children. If, on the other hand, a community gets weighted down with mothers who can't support their children, it ceases to be a healthy community. (But if, instead of aborting, the mother chooses to place the baby up for adoption - and this should be HER choice, never the community's - that's fine, although it's worth noting that there are already thousands of unfortunate kids waiting to be adopted in this world, and placing them in good families is already a task that overwhelms us.)

And on that question of so-called "murder," we often forget that God does not decide what kind of killing is considered "murder" under our laws - we do. In fact, to the extent that the Judeo-Christian-Islamic God has weighed in on anything like "murder" in general, he said in his famous Ten Commandments only that you shalt not "kill" - but paradoxically, one of the few times "He" addressed the idea of killing babies in particular, he seemed to be all in favor of it, instructing the Jews it was okay to go to Canaan and kill everybody they see, women and babies included.

The death of the extremely young, awful as this may sound, has always been a natural part of life on Earth. How many newly-born sea turtles survive long enough to create their own offspring? And it wasn't too long ago in human history that infants had maybe a fifty-fifty chance of becoming children, much less adults. Back then, we created as many babies as we could afford to raise, knowing not all of them would stay with us long enough to support us in our old age; it's only now, after our scientists have come up with miracle means of straight-arming infant mortality, that we are confronted with the vexing question of whether to purposely perform a task that nature used to handle on its own.

Obviously, I don't buy into the belief that abortion should never be used for "birth control" purposes, an argument that even many "pro-choicers" are too shy to deny; in fact, that's almost always how abortion will be used. In truth, as frightening and brutal as this may seem to some, when it comes to abortion as birth control, I think God probably approves of the concept. In fact, I think God, at least the one I believe in, might actually, in most cases, mandate it.

And so now you know why I rarely talk about this stuff.


Yep, telling the Christian evangelical right that, in regard to abortion, "God probably approves of the concept," would be a tough sell.  And the secular left doesn't deal much with talk of God.

Rick may be right about all this.  But the argument is too hot for these times, where everyone is saying he or she knows exactly what God approves of and what He does not, and everyone else just has it all wrong.  I kind of like Rick's God - sounds like a reasonable fellow.




Late note from Rick –


That's funny, when I re-read what I wrote, my God comes off sounding like a heartless SOB who doesn't care if little babies live or die.


Maybe He's really into that conservative value they call "tough love," but further into it than even THEY are willing to go; or maybe He's even deep into what those same tough-minded people (in other contexts, of course) sometimes call "realism," but the full knowledge of which would turn the face of the most red-faced evangelist pale.


Maybe so.



Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
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