Patterico's Pontifications


Why Does William Saletan Treat Women Like Girls?

Filed under: Abortion,Judiciary — Patterico @ 8:04 pm

[Note: this post will make a lot more sense if you first read this.]

Mr. Saletan, it’s a pleasure to have you before our new Commission for the Regulation of American Pundits. (I understand your objection to the acronym; maybe we should have thought of that when we came up with the name.) In any event, we appreciate your agreeing to sit down with us and defend your recent hatchet job — I’m sorry, but there’s no other way to describe it — on Judge Alito’s dissent in Casey.

I want to start by saying that many people have praised you as a fair-minded guy, at least at times. So I’m really hoping that you can answer this question for me, because it’s really caused us some concern down here at C.R.A.P. What we want to know is, well, really it’s two things. First, why do you think that grown women are emotionally weaker than girls? And second, why did you try to distort Judge Alito’s record by implying that he thinks that, when you are the one who seems to hold that view?

I’m referring, of course, to this piece that you recently wrote in Slate, where you pretended to be a U.S. Senator quizzing Judge Alito, using a folksy, conversational tone — why, kind of like the one I’m using with you here today.

Now, here’s the part I don’t get, Mr. Saletan. You criticized Judge Alito for analyzing a spousal notification provision by referring to two previous Supreme Court decisions: Hodgson v. Minnesota and H.L. v. Matheson. You quoted Judge Alito’s opinion, which said:

Justice O’Connor’s opinions disclose that the practical effect of a law will not amount to an undue burden unless the effect is greater than the burden imposed on minors seeking abortions in Hodgson or Matheson.

And then you said to Judge Alito:

And you uphold the spousal notice law because its burden doesn’t exceed the burdens in those other cases.

Now, here’s my question, Judge. Do you really think an undue burden for a grown woman is the same as an undue burden for a teenager? Do you think a woman deserves no more deference than a girl?

That seems to be the gist of your opinion here.

(That’s my emphasis there, Mr. Saletan.)

I guess my real problem here, Mr. Saletan, is your question: “Do you really think an undue burden for a grown woman is the same as an undue burden for a teenager?” I have two problems with it, really. My first problem is that it’s a completely cheap shot. No really — you’ll get your chance to respond — but it is, sir. It is. We’ll talk about why in a second. And my second problem, Mr. Saletan, is that even if we take your cheap-shot question seriously, you have the logic exactly backwards.

Let’s start by discussing why it’s a cheap shot. Someone reading your piece who isn’t familiar with the process of legal reasoning — and let’s face it, Mr. Saletan, that’s most of your readers — could hardly be blamed for coming to this conclusion: Sam Alito had a whole world full of situations to which he could have analogized spousal notification, and he deliberately chose to compare it to parental notifications. In other words, Judge Alito made the conscious choice to analogize women to girls. That’s really what you’re saying in your piece, isn’t it?

Now, Mr. Saletan . . . let’s be honest here. You and I both know that’s not the case. You and I both know that Judge Alito cited the correct precedents. In fact, he had to consider those precedents. But, by complaining that he compared spousal notification to parental notification, you’re suggesting that he had some choice over which precedents to discuss.

That’s a cheap shot, Mr. Saletan. At least that’s how it seems to me now. I’m happy to let you try to explain it to us.

But for now, let me see if I can select an analogy that drives the point home — and yes, unlike Judge Alito, I am not constrained by precedent to a limited set of situations to which I can analogize.

Let’s say that I’m a judge deciding the criminal case of People v. Schmidlap. Mr. Schmidlap is charged with the theft of diapers for his young infant. Now, let’s also assume that I am writing a judicial opinion that begins by noting that the applicable standard of proof is beyond a reasonable doubt. For that proposition, I cite the landmark case of People v. Schlemiel — a case that, it just so happens, dealt with a particularly nasty mass murderer.

According to your logic, Mr. Saletan, I could be criticized for treating a mere diaper thief the same as a serial killer.

Here’s the thing, Mr. Saletan: I have to cite the Schlemiel case — because that’s the case that everybody cites for that rule. That doesn’t mean that I’m comparing the defendants in the two cases. All I’m doing is applying the same legal standards to both situations, by looking at the precedents that the law requires me to look at.

So, if someone were to say I compared a diaper thief to a serial killer, that would be an unfair criticism. I guess you could even call it a cheap shot — wouldn’t you agree, Mr. Saletan?

By the same token, Judge Alito used the same legal standard that had previously been used for parental notification — the standard of an “undue burden” — and applied it to spousal notification. That doesn’t mean that he thinks of women the same as girls, Mr. Saletan. It just means that he was following precedent.

But forget for a second that Judge Alito had no choice but to look at the precedents he looked at. Your criticism of him was still unfair, because you got it exactly backwards.

See, Mr. Saletan, here’s the thing. Judge Alito said that a spousal notification law should also be upheld as long as it 1) did not create an undue burden on women, and 2) was reasonably related to a legitimate state interest. And looking at the burden, Judge Alito noted that — according to Justice O’Connor’s statement in a previous case — minors seeking an abortion who told their parents of their intentions “may confront physical or emotional abuse, withdrawal of financial support or actual obstruction of the abortion decision.” But Justice O’Connor still upheld parental notification. In light of that fact, Judge Alito said: we have to look at whether spousal notification is a greater burden on a grown woman than parental notification is on a young girl.

That’s the right way to look at it — isn’t it, Mr. Saletan?

So then you ask this question of Judge Alito, and a downright interesting question it is: “Do you really think an undue burden for a grown woman is the same as an undue burden for a teenager?” And I’ll be danged if I don’t find myself shaking my head and saying: no. No, it isn’t. It seems to me that someone who doesn’t patronize women would be forced to conclude that a grown woman is not going to be burdened by the need to tell someone else about an abortion, the way that a young girl might be burdened by a requirement that she tell her parents.

See, a grown woman is allowed to have sex, so it’s generally no great shock when she turns up pregnant, the way it often is when a teenager does. And while many women are financially dependent on their husbands, most aren’t in quite the same way as teenagers are dependent on their parents — for food, clothing, and education. And grown women are presumably more used to making decisions on their own than teenagers. After all, they’re adults.

So it seems like notification would be less of a burden for women — unless you’re going to treat women like girls.

What I don’t get is, you follow up the question above with this one: “Do you think a woman deserves no more deference than a girl?” But, unless I’m mistaken here, Mr. Saletan — and again, you’re the big-time pundit and I’m just the lowly blogger — but I thought Judge Alito was supposed to be discussing constitutional law. Your question sounds to my ears like a policy question. And heck, Mr. Saletan, I’ll bet you and I could sit around on the front porch, rock in our rocking chairs, and have good old time debating policy questions like that.

But that wasn’t Judge Alito’s job, now was it, Mr. Saletan? His job was to look at what is an “undue burden” . . . right?

Now, I’m just a lowly blogger, Mr. Saletan, born in the heartland and raised in Texas. So you’ll have to pardon me if I don’t follow the ways of big-time pundits who write for Slate. But it just seems to me that when you want to claim that spousal notification is a greater burden on a grown woman than parental notification is on a girl — well, that sort of sounds to me like you’re patronizing the grown woman.

In other words, it sounds to me like William Saletan is, well . . . treating women like girls.

Which strikes me as kinda funny, because the headline of your piece asks: “Why does Judge Alito treat women like girls?” And what I want to ask you is: why are you accusing Judge Alito of treating women like girls, when it sounds an awful lot like you’re the one doing that?

And on that question of whether the state had a legitimate interest, well, you were kind of unfair there too, weren’t you, Mr. Saletan? You took Judge Alito’s citation of Supreme Court precedent suggesting that a husband has an interest in the welfare of his unborn child, and called that “giving a man a state-guaranteed say in a woman’s abortion decision.” But the statute in question doesn’t give him any “say” in the decision at all, now does it, Mr. Saletan? And the thing is, I think you’re smart enough to know that — which makes me wonder why you said it, when you have to know it’s not true.

Now, you make an awful lot out of the fact that Justice O’Connor disagreed with Judge Alito on the question of what constitutes an undue burden. And, in your exaggerated down-home folksy sort of way, you were pretty rude and smug about the way you said it. I know you disagree, so I’ll just quote you and let the folks back home decide what your tone sounded like:

[Y]ou implied that Justice O’Connor, the justice you’re planning to replace on this court, would agree with you.

In point of fact, you were wrong about that, weren’t you, Judge? I mean, we have the actual answer to that question, because Justice O’Connor, along with Justices Kennedy and Souter, wrote the Supreme Court’s controlling opinion in Casey a year after you issued your dissent. And she pretty flatly rebuked you, didn’t she? She says the spousal notice provision “is an undue burden, and therefore invalid.” Couldn’t be any plainer. . . . That’s kind of a slap there, isn’t it, Judge? All that stuff you wrote about the woman not being sufficiently informed to make the decision without her husband’s help—not being competent, evidently, to decide whether consulting him was a good idea—Justice O’Connor pretty much whacked that one out of the park, didn’t she? And the same for your point about the husband’s interest in the fetus—”Does not permit the State to empower him with this troubling degree of authority,” she says. That’s pretty clear, isn’t it?

But in point of fact, Mr. Saletan, I’d say that if you provided the folks with the full context, they might see that it’s not such a big deal that Judge Alito reached a different conclusion than Justice O’Connor did on what is an undue burden. In fact, the joint opinion that you read as such a big slap to Judge Alito explicitly notes that Supreme Court Justices have often disagreed on the scope of what is an undue burden — including even the three Justices who wrote the joint opinion! You’ve done quite a bit of quoting, so hopefully you’ll be patient with me while I do a little quoting of my own:

The concept of an undue burden has been utilized by the Court as well as individual Members of the Court, including two of us, in ways that could be considered inconsistent.

I guess you could say that’s “kind of a slap” to the individual Members of the Court who utilized the concept of an undue burden different from one another — but then, I guess, the authors of the joint opinion are kind of self-administering that slap, wouldn’t you say, Mr. Saletan? So the whole idea that Judge Alito should be ashamed at himself for applying the “undue burden” test different from Justice O’Connor — well, the authors of the joint opinion, including Justice O’Connor herself, kind of knocked that one out of the park as well, don’t you think?

Well, I could go on, but I see that the Chairman wants to wrap things up. I wanted to ask you about that long, strained, hard-to-follow argument you made that “if the Supreme Court says you can’t second-guess a woman about her daughter’s abortion, you can’t second-guess her about her own abortion, either.” I was going to ask you what that has to do with the legal standards of the case, like the concept of an “undue burden.”

And I had a question or two about the parade of not-so-horribles you recite at the end of your piece, like the terrifying prospect that a contrary decision in Casey could lead to laws requiring pregnant women to tell their husbands if they were going to take action that would endanger the fetus, like smoking or drinking. I was curious to know whether you really thought that would be so bad that you can really call it declaring “open season on pregnant women.” But I see my time is up, so I guess those questions will have to wait until another day.

But can I ask you one last thing, Mr. Saletan? Next time you write a piece for Slate, could you do me a favor and drop the folksy, down-home, it’s-just-us-guys-talking-here conversational tone? It’s annoying enough when Joe Biden does it in real life; we don’t need to see it in your columns, too.

Gee, thanks a lot, Mr. Saletan. I’m glad we had this talk.

UPDATE: Charles Krauthammer makes the same point about the relative burdens of spousal and parental notification laws.

UPDATE x2: Thanks to Lucianne for the link, and welcome to her readers. I hope you make my site a regular stop. You can bookmark/blogroll my main page here, and can add me to your Bloglines subscription by clicking this button:

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The Alito Project

Filed under: Judiciary — Patterico @ 7:17 am

Here is PFAW’s report on Judge Alito’s judicial decisions. I assume these people have identified the decisions that liberals consider the most allegedly troubling of his 300+ opinions.

Though this might be kind of ambitious, I’d like to try to tackle about one of these a day, starting with the most controversial. So far, I have written about two of them: the Casey dissent on spousal notification for abortion, and the Doe v. Groody case on the strip-search of the ten-year-old girl (actually a technical case about the scope of a search warrant).

Even before Judge Alito was nominated, I focused on the Casey dissent as the likely Ground Zero for any debate about his nomination. I chose to follow up with the strip-search case because the lefties’ description of it was so lurid that it actually sounded like they were kidding. It made me curious.

I am soliciting suggestions for what cases to tackle next. Even if these cases have been discussed elsewhere in the blogosphere, I am hoping you will be interested in my take on them. For one thing, I guarantee you a careful reading of each case I discuss. For another, I guarantee you that I will tell you what I actually think, even if it may tend to harm the Alito nomination. I think I have proven that with my discussion of Doe v. Groody, in which I expressed some disagreement with one aspect of Judge Alito’s decision. You have my pledge that I consider my reputation for personal integrity to be paramount, and thus far more important than any contribution I might make to the success of a Supreme Court nomination.

Bottom line: I’ll give you the straight scoop as I see it.

So what cases do you want me to analyze? I plan to tackle the Family and Medical Leave Act case tonight.

Turning the Floor Over to Antonin Scalia

Filed under: Constitutional Law,Judiciary — Patterico @ 7:01 am

In Erwin Chemerinsky’s online chat, discussed in this post below, he mentioned the Supreme Court’s role as a protector of the rights of political minorities. He said judges like Alito and Scalia are insensitive to this role. I thought I’d give Justice Scalia the chance to respond.

First, the question to which Erwin was responding, and his answer:

Washington, D.C.: The history of the United States is a history where minorities have had to fight for rights and liberties. This would suggest that the Court is most important as a defender or not of individual liberty. The press makes it sound like all that matters, however, is whether a nominee is intellectually brilliant and a “nice guy” as witnessed by ex-law clerks and friends. Would I be wrong is concluding that the so-called “moderate” senators from both sides of the isle should line up against Alito if they care a whit about the Constitution as a shield and source of liberty for people? Isn’t the conservative agenda of judges like Alito in reality to lock down and shrink individual rights, making them subject to the arbitrary decisions of state legislatures?

Erwin Chemerinsky: I think that the Court’s most important role is in protecting minorities who are not protected by the majoritarian political process. This includes racial minorities, political minorities, religious minorities, and other groups that cannot rely on the political process to protect their rights. To me, what is so troubling about Justices like Scalia and Thomas is their insensitivity to this key role of the courts. Having read literally dozens of opinions by Alito in the last few days, I see this same insensitivity in his opinions.

That crazy old right-wing nutcase Antonin Scalia had a few things to say about this in his book A Matter of Interpretation, and I’d like to turn the floor over to him. Justice Scalia explains that a Living Constitution actually means the abdication of the Bill of Rights to . . . the whims of the majority:

The American people have been converted to belief in The Living Constitution, a “morphing” document that means, from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.

Does that sound like a guy who is insensitive to the role of the courts in protecting minorities?

Erwin Chemerinsky: Hypocritical Partisan Hack

Filed under: Judiciary,Law,Scum — Patterico @ 6:47 am

Erwin Chemerinsky had an online chat on the Washington Post website yesterday. Most everybody sucked up to him, and he proved himself once again to be a hypocritical partisan hack who will say anything to advance his political agenda. Here are the highlights:

Fairfax, Va.: I have always thought that the Gang of 14 “Compromise” was really a total cave-in by the Democrats wherein they agreed to eviscerate the filibuster rather than fight for it. What is your opinion about that agreement?

Erwin Chemerinsky: The filibuster has existed throughout American history. The effort by Republican Senators to eliminate it was power politics pure and simple. I am not sure why Democrats went along with the compromise unless they felt that they did not have the votes to keep the filibuster and it was the best they could do.

(All emphasis in this post is mine.)

Hey Erwin! That’s not what you said in 1997! As I have previously told you, Chemerinsky has co-authored a law review article that argued exactly the opposite:

The modern filibuster . . . has little to do with deliberation and even less to do with debate. The modern filibuster is simply a minority veto, and a powerful one at that. It is not part of a long Senate tradition and history alone cannot justify it. (p. 184)

. . . .

[E]ntrenchment of the filibuster violates a fundamental constitutional principle: One legislature cannot bind subsequent legislatures. (p. 247.)

. . . .

Therefore, Senate Rule XXII is unconstitutional in requiring a two-thirds vote in order to change the Senate’s rules. Declaring this rule unconstitutional would mean that a majority of the Senate could abolish or reform the filibuster. Ideally, the Senate would recognize this violation and revise its own rules to eliminate the requirement for a supermajority. (p. 253.)

Of course, this article was written back in 1997, when a Democrat was president.

I know it’s not news that Chemerinsky is a hypocrite, but sometimes you have to report these things even if they’re not news.

Philadelphia, Pa.: Judge Alito upheld our state’s abortion restrictions, including requiring that a woman notify the father that she plans to get an abortion. No exceptions are made, even in cases of abused women living in shelters. Shouldn’t this reasoning except to raise significant questions on Judge Alito’s decisions and might it lead to significant pro-choice opposition to this confirmation?

Erwin Chemerinsky: I think pro-choice groups will be unanimous in opposing Alito. The key question will be whether they and others can persuade moderate Republican and Democratic Senators to oppose Alito. The moderates will be decisive here.

A fair commenter would have corrected the questioner, who inaccurately stated that there were no exceptions to the spousal notification provision in the Pennsylvania statute reviewed in Casey. As I have already noted, there were four:

(1) [The husband] is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) [the woman seeking an abortion] has reason to believe that notification is likely to result in the infliction of bodily injury upon her.

If you are an abused woman in a shelter, you obviously have reason to believe that “notification is likely to result in the infliction of bodily injury.” The questioner is simply wrong. But our friend Erwin, leftist hack as he is, was perfectly content to leave the questioner’s false statement just hanging out there . . . because it serves his agenda.

P.S. As I read his answers to the questions, I can still hear that whiny voice of his, even though I’m not actually listening to him.

P.P.S. More on the chat in the post above this one, here.

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