« Bananarama | Main | Air War » It Should Be Overturned22 Jun 2008 03:03 pm There's some kind of persistent confusion, both in the punditocracy and among the public at large, as to where John McCain stands on this issue, but he's been fairly clear that he wants to overturn Roe v. Wade: In an ideal world, we'll get an honest debate on this and related subjects during the campaign season, rather than the usual thing where candidates just kind of mutter about "strict constructionists" without saying anything substantive. Comments (30)
"Hard to slither out of that." It should be hard, but with a media dedicated to portraying McCain as a moderate, it won't be. That video footage has already been buried by the MSM. It only survives on YouTube. 
Matt, hurry up and get on KPFK. Ian Masters is ranting about the wackos on the station again.
Here is the reality: after 8 years of Bush, with 2 appointments to the Supreme Court, if McCain were to win the presidency it would almost certainly mean the repeal of Roe v Wade. The next president will most likely get to appoint at least 2 justices, and those will be replacements for the more liberal justices. I really hope that all women out there understand that a McCain presidency means the overturn of Roe v Wade and back to the backroom abortions, coat hangers, etc. As others have mentioned, the media is covering for McCain. We need to somehow reform the media, pressure the media, go around the media...if the truth gets out about McCain, he will be toast.
"In an ideal world, we'll get an honest debate on this and related subjects during the campaign season" Maybe we could have a series of town hall-style debates where the candidates would tour the country and directly answer the questions of voters. Of course, any typical politician would be afraid to do this.
A couple of points which will, apparently, come as a shock to some of your readers: 1) It is entirely possible to believe that abortion should be legal, and still believe that Roe v. Wade, as a legal matter, was a lousy decision. 2) It is also possible, regardless of one's position on abortion, to be aware that, if Roe v. Wade had not happened as it did, abortion would have become legal in most of the country long since. (Not all. But then, Prohibition is still in force in some counties. Honest!) And the country as a whole would probably be rather further to the left than it currently is. Certainly the theocons would have less clout than they have had for the last decade or two. There may be other reasons to worry about the kinds of decisions that McCain-appointed Justices would make. (Or to celebrate them, depending on your inclinations.) But getting hysterical about the impact on abortion is way down on the list.
1) It is entirely possible to believe that abortion should be legal, and still believe that Roe v. Wade, as a legal matter, was a lousy decision. Well, it's possible to believe lots of things. That doesn't mean they make sense. But I do agree with you that the election of McCain would be unlikely to have any serious impact on the availability of legal abortion in America.
McMaverick is a hypocrite. No abortions for you, but for his daughter: "McCain describes himself as a "pro-life" candidate and says he favors a ban on abortion except in the case of rape, incest or to protect the life of the mother...Republican presidential candidate John McCain, when asked Wednesday what he would do if his 15-year-old daughter Meghan became pregnant and wanted an abortion, said it would be a "family decision."
There's a lot of pro McCain misinformation coming from disgruntled Hillary supporters. I've read editorials by female Hillary supporters arguing that This is beyond foolish. First of all, McCain will be a one-term President and he only cares about foreign policy. In other words, if the judges he appoints overturn Roe v. Wade, he won't care and won't have to deal with the political wreckage. What's more, let's pretend for a second that McCain is lying and doesn't actually want to over turn Roe v. Wade. O'Connor was already replaced with an anti-abortion hard liner. McCain will assuredly get to appoint two justices during his single term, maybe even three. Even if he didn't want a judge to overturn it, just wanted a generic conservative judge, all he has to do is accidentally appoint one pro-life judge and the whole game is over for twenty years. That's it. One time out of three attempts and it's over. Add this to the fact that he says he wants to overturn it, and the fact that Congress can only stall judicial nominees for so long and is unlikely to block a Roberts style appointment (someone who is eminently competent and appears moderate but really isn't), and it becomes obvious that a McCain presidency isn't just likely to overturn Roe v. Wade, it's almost a certainty. That doesn't mean you have to vote for Obama. It's not the most important issue for most people, but I'm sick of people claiming that somehow you can vote for McCain AND keep Roe v. Wade. You can't.
he's been fairly clear that he wants to overturn Roe v. Wade Depends on when you ask him. In 1999 he said, "certainly in the short term, or even the long term, I would not support repeal of Roe v. Wade, which would then force X number of women in America to [undergo] illegal and dangerous operations." Maybe it's after the long term. The next president will most likely get to appoint at least 2 justices, and those will be replacements for the more liberal justices. All of the liberal justices are over retirement age. Roberts is 53. Alito is 58. Thomas is 59. Souter is 68. Breyer is 69. Kennedy is 71. Scalia is 72. Ginsburg is 75. Stevens is 88.
Obama has to be carefull about this - This is a small example Just saw hard right Catholic writer on TV describing Obama as pro abortion extremist. If Weigel can get his view to gain traction, it will hurt Barack with Catholics who are skeptical of OBama, but open to persuasion. While pro choice is a majority position - many voters who are pro choice are wishy washy and regard abortion as deeply immoral. So they often vote against Dems who come accross as advocates of abortion -
IMO - McCain does not really care too much about this position - Also, he feels somewhat sheepish about being pro life because that stance implicitly, in key respects, contrasts with his often bragged about playboy days. He has carved out a clever dodge by hiding in plain sight within the Roe constitutional questions. Privately McCain winks at social liberals when he explains how possibly overturning Roe only means a possibility (an unlikely one at that) that abortion could be restricted in some ways in a few states etc Republicans have gamed this issue in ways that many Dems - esp activists - still do not understand.
Incidentally - Joe Biden actually seemed amused today on MTP debating Lindsey Graham. What's up with Graham - he behaves childishly - pouting and making faces and getting stammered by anti McCain words or questions. Obama scored a coup when he flip on federal campaign money - Priceless seeing McCain and Lindsey Graham pout with false indignation and faux piety.
Reasons why a McCain win is not likely to lead to the overturning of Roe v. Wade: 1. Stare decisis. The court is very reluctant to overturn long-standing and deeply-entrenched law. Even if Roe were overturned, banning abortion is not politically feasible outside a few conservative states, and there would be enormous pressure on Congress to pass a federal law protecting the right to abortion even in those states.
Mixner, are you really defending Roe v. Wade as a legal decision? It's getting hard to find jurists who will agree with that, though a lot of them like it on policy grounds. Or were you just trying to be snarky without taking a position?
Mixner, are you really defending Roe v. Wade as a legal decision? Absolutely. It's getting hard to find jurists who will agree with that, I doubt the opinion of the vast majority of jurists on the question is known to anyone.
Mixner, I suspect that you are right that, deep down, McCain would rather not deal with the fallout from overturning Roe. That said, I doubt that W. really wants to see it overturned either but he nominated Roberts and Alito, each of whom I think most agree would vote to overturn Roe.
1. Stare decisis. The court is very reluctant to overturn long-standing and deeply-entrenched law. I don't think the Roberts court has any particular inclinations in that regard. 2. Overturning Roe would probably require at least three new justices, all willing to vote the same way. Would it? Stevens, Breyer, Souter, Ginsburg, and Kennedy can be assumed to be pro-votes. If given the opportunity, I imagine that Scalia, Thomas, Roberts, and Alito will all vote against. I don't see how a three-justice change would be required. 3. McCain doesn't really want to overturn Roe, public rhetoric notwithstanding. It would probably lead to a civil war in the GOP, and he doesn't want that. I don't think he cares all that much, one way or the other, but I have few doubts he'll pick a justice that will vote to overturn.
That said, I doubt that W. really wants to see it overturned either I agree. but he nominated Roberts and Alito, each of whom I think most agree would vote to overturn Roe. I seriously doubt most would agree that. We simply don't know what they would do. Roberts' responses to questions about Roe at his confirmation hearing certainly don't suggest that he would vote to overturn it.
I don't think the Roberts court has any particular inclinations in that regard. At his confirmation hearing, Roberts stated: "Roe v. Wade is the settled law of the land ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent." If given the opportunity, I imagine that Scalia, Thomas, Roberts, and Alito will all vote against. I don't see how a three-justice change would be required. And I'd say the only names on that list who would be reliable votes for overturning Roe are Scalia and Thomas. And there's some doubt even with them.
At his confirmation hearing, Roberts stated: "Roe v. Wade is the settled law of the land ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent." Confirmation hearings are kabuki theatre. Since getting onto the bench, Roberts has shown himself to be nothing other than a completely conventional Republican justice in the Scalia/Thomas/Rehnquist mold -- perhaps a bit less of a verbal firebrand than Antonin, but the decisions don't differ much. And I'd say the only names on that list who would be reliable votes for overturning Roe are Scalia and Thomas. And there's some doubt even with them. How is there any doubt with Scalia and Thomas? They both agreed with the challenge to Roe in Casey; if given another shot at it, I'm sure both would be happy to bite again. I've zero doubt with Alito, either. MAYBE a case could be made with Roberts, but even then, that still only requires two justices to be replaced, and with both Ginsburg and Stevens at that age, we're still looking at that in the next four years.
jbryan, Confirmation hearings are kabuki theatre. They're probably a better guide than your guesses. If you think you have evidence that Roberts doesn't have "any particular inclinations" with respect to precedent and stare decisis, produce it. Since getting onto the bench, Roberts has shown himself to be nothing other than a completely conventional Republican justice in the Scalia/Thomas/Rehnquist mold And your evidence for this is.....? Of course, just because two Justices tend to agree on most issues obviously doesn't mean they would agree on abortion or any other particular issue. Sandra Day O'Connor is certainly not generally considered a liberal, but she certainly believes there is a constitutional right to abortion.
They're probably a better guide than your guesses. If you think you have evidence that Roberts doesn't have "any particular inclinations" with respect to precedent and stare decisis, produce it. I don't have any evidence. I don't have any evidence that Ruth Bader Ginsburg would vote X way on a particular issue, either, other than looking at how she votes on other things and with which justices. Now, obviously since Roberts is a newer justice, he's more of a question mark. But he hasn't shown a lot (he has shown a bit) that has distinguished himself from the other members of his bloc on the court. But I already conceded that how he'd vote on the issue is arguable, so I left him as a question mark and notched it up to two justices. Alito isn't that questionable. Your claim that Scalia and Thomas are question marks when they already tried to overturn Roe once is just silly. Sandra Day O'Connor is certainly not generally considered a liberal, but she certainly believes there is a constitutional right to abortion. Right. Sandra Day O'Connor was considered the archetypical swing justice who, along with Kennedy, resulted in decades of 5-4 decisions. John Roberts and Sam Alito certainly don't qualify in that regard.
I don't have any evidence. Then you're not in a position to predict his behavior on the matter. So we're back to the broader point that in general the Court is reluctant to overturn long-standing precedent. For that and the other reasons I mentioned, a McCain win in November is not likely to lead to the reversal of Roe. And even if it did, that would be unlikely to imperil the availability of legal abortion. Especially if, as seems very likely, the Democrats control Congress. As we all know, one of the more popular toys in the liberal sandbox is the assertion that Roe, and legal abortion itself, are "hanging by a thread." Liberals have been telling that story since Reagan was first elected almost three decades ago. And yet, strangely, both Roe and legal abortion have survived despite more than 20 years of Republican control of the White House, and 20 years of Republican appointees to the Supreme Court and the rest of the federal judiciary, since Roe was decided. One is tempted to conclude that Democrats are exaggerating the threat out of all proportion for crass political purposes.
Then you're not in a position to predict his behavior on the matter. Oh, come off it. No, I don't have any evidence of something that cannot be proven as it is something that has not happened yet. That's not going to stop me, and anyone else from speculating, and making educated/reasonable guesses, as to what particular justices will do in certain circumstances. It's no different from what you're doing holding stare decisis up as the holy grail despite a court that has demonstrated a willingness to look the other way when precedent is inconvenient. For that and the other reasons I mentioned, a McCain win in November is not likely to lead to the reversal of Roe. And even if it did, that would be unlikely to imperil the availability of legal abortion. These are two unrelated points. On point 2: I agree that no matter what happens, abortion will remain legal and available throughout most of the country; the overturning of Roe will not significantly impact women in most areas, as most states will elect to keep the status quo. But on point 1, you've proven nothing, and I still don't agree that a McCain win would in no way put Roe at risk. I believe if he appoints justices in the Alito or Scalia mold, it will be overturned. And as I said before, it only takes one -- two at the most. Liberals have been telling that story since Reagan was first elected almost three decades ago. And yet, strangely, both Roe and legal abortion have survived despite more than 20 years of Republican control of the White House, and 20 years of Republican appointees to the Supreme Court and the rest of the federal judiciary, since Roe was decided. One can conclude whatever one likes. Even Republicans will, from time to time, appoint moderate justices. I'll be the first one to say that the country would be lucky to get a few more Souters out of them. But then we also get the Scalias and the Thomases and the Alitos. The fact that Roe is still around does not disprove that the ruling is at risk. I mean, come on -- it only survived a 5-4 vote in the early 90's. It's not like it would take some sort of monumental swing to put it in jeopardy. The court will revisit the ruling and given the delicate balance on the court, of course it's at risk.
Re: I believe if he appoints justices in the Alito or Scalia mold, it will be overturned. But would he do so with a Democratic Senate to get through? Or would he find someone like Kennedy who he could through the Senate easily? My take on McCain is that (like Reagan) he has a couple of things he really cares about and the rest of the rightwing agenda he'd happily flush down the toilet to get his true concerns tended to. Also, if he's a one-termer he won't have to worry about kissing the GOP base's rear.
"I really hope that all women out there understand that a McCain presidency means the overturn of Roe v Wade and back to the backroom abortions, coat hangers, etc." Leaving aside that a reversal of Roe wouldn't automatically lead to "backroom abortions, coat hangers, etc.", you probably shouldn't hope that, given that women are, on average, MORE pro-life than men. I think JonF is right: Given a conservative Republican Senate, McCain might nominate justices who'd overturn Roe, but that's not the Senate he's going to face. Not only will he gladly flush "the rest of his right-wing agenda" down the toilet to get his true concerns tended to, his true concerns tend to be issues like campaign censorship and encouraging illegal immigration, where he's more in agreement with Democrats than Republicans. His nominations, if he gets the chance, won't make Democrats happy, but they'll cause Republicans to go scanner.
"Strict constructionism" doesn't just amount to Republican "mutterings" -- it's a legitimate approach to jurisprudence. I agree with wj way up at the beginning of the thread. And I would add that it's possible to be pro-choice and also to believe that there's no Constitutional right to abortion. That this is a matter that should be decided by the elected representatives of the people in each state.
women are, on average, MORE pro-life than men. Not the case according to any of the recent polling I've seen. Pew's 2005 and 2006 surveys showed men and women within the margin of error of each other on whether abortion should remain legal. http://people-press.org/report/283/pragmatic-americans-liberal-and-conservative-on-social-issues http://people-press.org/report/253/abortion-and-rights-of-terror-suspects-top-court-issues
It's cant.
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Heads in the Sand
Questioner: How do you feel about overturning Roe versus Wade?
McCain: I do not support Roe v. Wade. It should be overturned.
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Hard to slither out of that.
Posted by riffle | June 22, 2008 3:46 PM