Breaking: Alito Firmly Said Constitution Does Not Protect Right to Abortion
Fasten your seatbelts! The Alito rollercoaster may have been chugging slowly along without any excitement — but that may have been merely the beginning of the ride. We’re headed for that first hill, and it’s a doozy.
The right-wing Washington Times scoops the lefty national papers with this report:
Judge Samuel A. Alito Jr., President Bush’s Supreme Court nominee, wrote that “the Constitution does not protect a right to an abortion” in a 1985 document obtained by The Washington Times.
“I personally believe very strongly” in this legal position, Mr. Alito wrote on his application to become deputy assistant to Attorney General Edwin I. Meese III.
Fuller context? You got it:
“It has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan’s administration and to help to advance legal positions in which I personally believe very strongly,” he wrote.
“I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.”
That sound you hear is a low chuckle, coming from me, as I anticipate the liberal reaction to that.
Of course, I look forward to reading the actual letter. But this seems pretty clear. It’s hard to imagine how it could be simply taken out of context — unless the Washington Times left out a sentence that said: “Just kidding!”
This is not some quickly corrected misquotation of a university faculty advisor. This is an opinion expressed in black and white. And the liberal interest groups are going to absolutely go through the roof.
Some anonymous Republican sounds unworried:
“We’re delighted to have a debate over judicial philosophy and the proper role of courts in America,” a Republican strategist said. “That’s a debate the Republican Party wins every time.”
Every time, you say? Is that so?
I was perfectly happy to get a strong nominee without a fight. But this tells me we will likely get that fight after all.
(Via Andrew at Confirm Them, who notes: “Well, this will certainly enliven the debate.” That, my friends, is the understatement of the day — and it’s not even 6:30 a.m.)
UPDATE: Also via Andrew at Confirm Them is this link to the document itself. The relevant language is at page 15 of 21.
UPDATE x2: Oddly enough, the L.A. Times runs what appears to be a largely fair and non-distorted news update on this revelation — together with (hold on to your hats) an actual link to the actual document! Nice job, guys.
UPDATE x3: More on the L.A. Times article here. There is one paragraph that bugs me.
Good.
Nan Aron and Ralph Neas can eat chain.
Angry Clam (fa7fff) — 11/14/2005 @ 6:29 amAlito: Abortion is Not a Right
Washington Times
Stop The ACLU (c485fa) — 11/14/2005 @ 6:57 amJudge Samuel A. Alito Jr., President Bush’s Supreme Court nominee, wrote that “the Constitution does not protect a right to an abortion” in a 1985 document obtained by The Washington Times.
“I personally b…
Uh oh.
Get yer ear protection out and be ready for the screeching.
Dwilkers (a1687a) — 11/14/2005 @ 7:04 amA battle over judicial ideology is inevitable. How many well-qualified conservative judges who never express a personal opinion on abortion, quotas, etc., can there be in the world? My attitude is it’s better to have this fight now or people will get the idea that the only acceptable conservative candidate is a stealth candidate.
DRJ (15ed57) — 11/14/2005 @ 7:48 amWell, the lovely Mrs. Michelman did suggest in yesterday’s Los Angeles Times that she wanted to see a filibuster; perhaps now she’ll get what she wants.
Of course, if she gets what she wants, and the Republicans actually do have the muscle (and the testosterone; this isn’t a given) to execute the nuclear option successfully, then NARAL and PFAW and the rest of the Usual Suspects will be gnashing their scummy teeth when Justice Stevens retires next year!
Dana R. Pico (3e4784) — 11/14/2005 @ 7:57 am[…] Patterico has thoughts: “It’s hard to imagine how it could be simply taken out of context — unless the Washington Times left out a sentence that said: “Just kidding!”” […]
Project Nothing! » Blog Archive » The Alito abortion roller coaster continues (0046a2) — 11/14/2005 @ 7:59 amAlito Reads, Understands, Constitution
Alito apparently reads, and understands, the Constitution. Wow. If Alito retains any of the brains he had when he wrote that memo, he should overrule Roe v. Wade if it ever presents itself again. One doesn’t ratify abortion rights while sincerely bel…
Aggressive Conservative (59ce3a) — 11/14/2005 @ 8:41 amI’m glad for this news. It’s a great development. Better to have a strong nominee and a fight over judicial temperment, than a strong nominee with no fight at all.
More at my blog here: Alito Reads and Understands Constitution
Sydney Carton (42bed3) — 11/14/2005 @ 8:42 amB.F.D. The only people who think that there’s a right to abortion hiding in the penumbras of the Constitution’s specific guarantees are Ralph Neas and Nan Aron. If not for the distortions of the case by the pro-abortion lobby, most people would respond to an opinion pollster’s question regarding Roe versus Wade by choosing one or the other. Those polls, which supposedly show overwhelming support for not reversing that case, also show overwhelming support for numerous limits on abortion rights not permitted by the Court’s rulings.
The confirmation hearings might be what it takes to inform the public on just what Roe/Doe/Casey says, in particular, what the case law prevents legislatures from doing.
TNugent (6128b4) — 11/14/2005 @ 9:14 amT(ed?) Nugent said:
Mr. Nugent, I wish that you were right. Unfortunately, I can name a few other people who believe that there’s a right to abortion hiding in the penumbras of the Constitution’s specific guarantees:
Even with Mrs. O’Connor being (hopefully) replaced by Samuel Alito, that still leaves five.
Dana R. Pico (3e4784) — 11/14/2005 @ 9:28 amOk, then. 7 people, not two. And 5 of the 7 get more votes than everyone else combined. So, you might be right, but perhaps the five other than Aron and Neas are relying on Roe/Doe/Casey and stare decisis, rather than anything they really think is found in the constitution. But then, perhaps those five people also believe that the prounouncements of the Court – – that is, what they themselves prefer — have superseded the Constitution. Do we know whether any of the five have ever voted contrary to personal belief or policy preference?
TNugent (6128b4) — 11/14/2005 @ 9:38 amJudge Alito is welcome to use my motto:
Tell the truth and run like hell.
Black Jack (ee9fe2) — 11/14/2005 @ 10:16 amLegal Question:
Is there an established legal test which can reliably differentiate between a Constitutional penumbra and ordinary wishful thinking?
Black Jack (ee9fe2) — 11/14/2005 @ 10:24 amI think I recall something about “know it when I see it.” I think the technical term is bovis fimus, or something like that, in latin. Bullshit, in ‘mer’can English.
TNugent (6128b4) — 11/14/2005 @ 10:44 amThe Jackster asked:
Yes, of course there is. If it is found in a majority opinion, it is a Constitutional penumbra; if it is found in a minority opinion, it is ordinary wishful thinking.
Dana R. Pico (3e4784) — 11/14/2005 @ 10:52 amDoes this in the future mean that prospective judges who are pro-abortion cannot become Supreme Court Justices as well?
So who does that leave to fill future vacancies?
jpm100 (06f700) — 11/14/2005 @ 11:05 am“Tell the truth and run like hell.”
I think a better strategy here would be to tell the truth and stand your ground. We’re likely to see a lot of defensiveness on the part of proponents of the nomination, and if I’m right, the opponents will be emboldened by that.
Better to be unapologetic, especially since his position has the advantage of being correct.
Attila (Pillage Idiot) (dfa1f1) — 11/14/2005 @ 11:09 amThe real question is whether he’d be willing to deal with the consequences of overturning Roe. Scalia and Thomas obviously don’t care what effect their rulings have on society, but whether Roberts and Alito do is another question.
Geek, Esq. (5dd2be) — 11/14/2005 @ 12:53 pmAlito is eminently confirmable, still. All this does is put more pressure on the Dems to launch a doomed fb. What’s not to like?
ras (f9de13) — 11/14/2005 @ 12:55 pmThe better question is “should judges consider the effect of their rulings” if they believe that the rulings are, legally, correct.
Angry Clam (fa7fff) — 11/14/2005 @ 12:55 pm[…] More from Patterico, Prof Bainbridge, and Confirm Them. posted by: The Editors @ 1:54 pm November 14, 2005 […]
The Unalienable Right » Judge Alito admits he’s a conserative, liberals horrified (7a057a) — 11/14/2005 @ 12:57 pmWe could debate that one for hours. However, unlike us, Alito will be on the SCOTUS, so it’s extremely relevant what he thinks.
Geek, Esq. (5dd2be) — 11/14/2005 @ 1:07 pmHey Pat,
I have an important question, where the hell was Karl Rove this past weekend? First on Friday, Bush gives a speech calling those who disagree with his war policy “deeply irresponsible.” Somebody should have reminded him that 57% of Americans now disagree with his war policy. Do you think it is a good idea to use a day reserved for the solemn remembrance of our war veterans to call 57% of Americans deeply irresponsible? I think not. What do you think?
And then on Saturday Bush allows himself to be photographed on those cycling tights. It’s one of the foremost truisms of American politics that Americans do not want to see their president wearing tights. It may have been OK for him to wear tights when he was cheerleading at Yale, but he’s the leader of the free world now! Even among you lustful republicans who seem head over heels for the guy, you must agree that some things are best left to the imagination. C’mon, George, No More Tights!!
Cheney’s approval rating is now down to 19%. Maybe Bush should lend Cheney the tights, after all how much worse could it get? Cheney’s at an approval level we havn’t seen since the halcyon days of Spiro Agnew, the tights might get him back at least in to the 20%+ range.
And did you hear that one fo Tom Delays staffers called right wing Christian conservatives “whackos?” Almost makes me want to give Delay some cash for his defense!
Just thought I would share some of todays good news!
phil (38d175) — 11/14/2005 @ 1:09 pmBTW, can we now double-officially super-stare declare that Stealth is out?
Those who think an open fight could be won (I am one such person, myself) now get to find out if they are correct. Couldn’t get a better candidate or a more open declaration on which to go to battle.
ras (f9de13) — 11/14/2005 @ 1:46 pmHow likely is it that the Court will get a case that provides a realistic opportunity for reversing Roe? It’s not as if there are cases coming up where a state is attempting to prohibit an abortion in the beginning of a pregnancy. Wouldn’t the Court limit its holding in any case to the question at hand? And isn’t that more likely to be whether a restriction on a late term abortion violates the due process clause, or whether a notification requirement does, etc., than whether something closer to an outright prohibition on abortion is permitted? Maybe Casey gets reversed. Who knows, maybe Roberts and Alito will be successful in bringing Stevens or Kennedy back from the dark side, at least on some issues. That’s more likely in a case where the holding is limited than if the Court tries to undo 30 + years of damage all at once.
TNugent (6128b4) — 11/14/2005 @ 2:38 pmAlito: On Abortion Explodes the Battle
Bill Sammon’s scoop on the Washington Times fires up the battle – on the Right and on the Left – for the confirmation of Samuel Alito at the Supreme Court. in a 1985 document obtained by the newspaper, Alito wrote that “the Constitution does not prot…
The Right Nation (59ce3a) — 11/14/2005 @ 2:39 pmras,
I’m up for the fight too, have been for some time, but I’d sure like someone who knows what they’re doing to count the votes in the Senate. Before you send out invitations to a party it’s a good idea to make sure you can pick up the tab.
The squishy House moderates who backed out on drilling in ANWR exposed a big soft spot in the GOP’s underbelly. Similarly, Senate RINO’s would sell out Conservatives in a heartbeat if the going gets tough, they really don’t see a downside. They take us for granted, RINO’s take it as an article of faith that Conservatives don’t have anywhere else to go.
Both the GOP and Conservatives can’t absorb a big time drubbing just now, better to take a little time, consolidate our position, fortify the high ground, sharpen our swords, and above all, count noses.
Alito’s the right guy, abortion and quotas are the right issues, Conservatives are ready, but the RINO’s are consorting with the other guys, and there’s a rotten smell on the wind. I urge caution and patience.
Black Jack (ee9fe2) — 11/14/2005 @ 2:45 pmBlackJack,
The args you gave are, I suspect, close to what Bush was thinking when he was using Stealth. What’s harder to assess is just how much the Miers nomination changed things since then.
I mean, RINOs are squishy by nature; that’s why they’re RINOs. Did the Miers’ reaction scare them straight. If so, for how long?
Regardless, the battle is on.
ras (f9de13) — 11/14/2005 @ 2:56 pmThat the left will run with this is fantastically absurd. But isn’t everything they do these days.
A. Alito is right.
B. The issue never should have been entwined in the Supreme Court to begin with.
C. It should be kicked back to the individual states to decide, probably through referenda vote.
D. Alito can’t overturn R/W all by himself.
Very simple.
Dadblastit, this needs to be taken out of the S. Court nominee equation someday. Some fine day, it needs to happen.
Laura (3e9158) — 11/14/2005 @ 4:49 pmRas wrote:
Well, yes. I was one of those (few) who supported the Harriet Miers nomination, in part because I, like the Jackster (who I thought disagreed with me then), am concerned with the Republicans in the Senate: can we be certain that we have the votes to employ the nuclear option?
Judge Alito wasn’t one of the more bandied-about names when Miss Miers pulled out, but I think that it was a brilliant nomination: if we are going to have to employ the nuclear option, I believe that we stand a better chance with Mr. Alito as the nominee than we would have with Janice Rogers Brown. He may be the absolute best nominee we could have to go into that battle.
Dana R. Pico (a071ac) — 11/14/2005 @ 5:00 pmAre you now, or have you ever been, a Conservative?
Filibuster here we come! We’re going to get our fight after all, and when it’s over not only will we have a new Associate Justice but we’ll be rid once and for all of the threat of 41 Senators being
Small Town Veteran (af7df9) — 11/14/2005 @ 5:13 pmAlito clearly stated his legal opinion that abortion was not a right protected by the constitution. Unless he calls himself a liar, he is obligated to overrule Roe v. Wade on that basis. He was well aware of that decision made in 1973 and cannot in good conscience claim before confirmation that precedent nonetheless requires him to follow the Roe decision. So – watch for the spin – and be warned in advance that he will certainly vote to overturn it.
Errol Scott (087572) — 11/14/2005 @ 9:55 pmAlito clearly stated his legal opinion that abortion was not a right protected by the constitution. Unless he calls himself a liar, he is obligated to overrule Roe v. Wade on that basis.
Errol,
Have you ever heard of precedent? You should study up on the law a little before you go around accusing people of being liars.
Patterico (4e4b70) — 11/14/2005 @ 11:20 pmPatterico pontificates off the ledge: “It’s hard to imagine how it could be simply taken out of context — unless the Washington Times left out a sentence that said: “Just kidding!”
Trackback All Things Beautiful Alito Supposedly Declares on Abortion
Alexandra (51bfeb) — 11/15/2005 @ 1:42 amPlease google the words “rehnquist” and “miranda.”
Geek, Esq. (5dd2be) — 11/15/2005 @ 8:22 amPlease google the words “rehnquist” and “miranda.”
No kidding.
Errol, not all the Justices take the “it’s wrongly decided, time to overturn!” tack that Justice Thomas and everyone who voted in the majority in Lawrence v. Texas do. There’s nothing demonstrating that Alito of the Thomist/Lawrencist stripe.
Angry Clam (fa7fff) — 11/15/2005 @ 8:29 amI would think Judge Alito in accepting his nomination was well aware of what he stated on his job application. I feel fairly confident that he shared this with the team. Obviously, he and the WH feel well prepared to defend his view that Roe is unconstitutional. (I would love to see “Roe” testify in favor of Alito and actually tell her story of how she was used by the feminists and how Roe was based on a lie). Having defended his legal reasoning, he could easily then go to “respect for precedent”and that he will rule on the constitutional merits of every case. Obviously, he cannot comment on any fictional cases that may be brought up. He can also refer to all of his rulings that upheld SC dictum . Obviously, he also has Brown vs. Bd. of Ed. and some other cases that were SC precedent but did not constitute judicial activism when they were overturned as they were inconsistent with our constitution in the first place.
It amazes me that Breyer is considered so intelligent. I tried to listen to some of his legal reasoning, his support of his theory that the constitution has always been for expanding freedom. His approach to the reading of the constitution is so simplistic and so obviously flawed. Yet Breyer never addressed the question of the “freedom of the baby in the womb.”?
I guess the question is will Alito want a fight or will he be smooth as wine like Roberts?
alexandra morris (8d0335) — 11/15/2005 @ 8:44 amYet Alito strikes me as a guy into a good beer. Oh well, it’s going to get interesting, and, frankly, I just want him confirmed!! (although I like watching a good bar fight too) Pardon the pun…….
“Have you ever heard of precedent? You should study up on the law a little before you go around accusing people of being liars.”
If he believes in precedent then he wouldn’t be arguing against them.
actus (ebc508) — 11/15/2005 @ 8:56 amIt’s not that simple, Actus.
Patterico (4382b0) — 11/15/2005 @ 9:16 am“It’s not that simple, Actus.”
I guess that’s what hearings are for. I’d like to know how much he legally disagrees with the Warren Court decisions. Specially the ones on reapportionment.
actus (ebc508) — 11/15/2005 @ 9:33 amOthers have commented on this also, Errol, but the Supreme Court’s job is to decide cases and controversies, not issue advisory opinions. Unless it gets a case in which the law involved restricts abortion at any time during pregnancy or is applied to prohibit or restrict abortion early in pregnancy, it’s hard to see how the case or controversy before the Court will require an outright reversal of Roe. Given the unlikelihood of such a law, or of such an application of a law restricting abortion, it seems more likely that Casey will bite the dust than Roe will. Roe is likely to suffer death from a thousand cuts, rather than a quick end. Rehnquist-like conservatism seems a better approach than a crusading originalism that goes beyond the needs of the case before the court.
Actus, I’ve yet to hear “respect for precedent” described as “belief in precedent.” Respect for precedent means just that, not blind adherence to precedent. A judicial conservative can be expected to approach carefully any case that challenges precedent, acknowledging the possibility that the precedent is correct even if it conflicts with the judges own view of the law, but also leaving open the possibility that the rule of the previous case, or some portion of it, is wrong and must be overturned or modified. One would expect a judge to take a similar approach in a case in which the constitutionality of a statute is challenged; had Harry Blackmun taken such an approach in Roe, he would have been William Rehnquist. Or something like that.
TNugent (58efde) — 11/15/2005 @ 10:26 am“Given the unlikelihood of such a law, or of such an application of a law restricting abortion, it seems more likely that Casey will bite the dust than Roe will.”
Seeing as how Casey limited roe, its hard to understand what this means.
“Actus, I’ve yet to hear “respect for precedent” described as “belief in precedent.” Respect for precedent means just that, not blind adherence to precedent”
If he respects precedents, would he be arguing for their overturning?
actus (ebc508) — 11/15/2005 @ 10:44 amRespect for precedent doesn’t require blind adherence to previous error. Progress usually involves overturning a prior orthodoxy, and if Alito’s confirmed, he can make up his own mind. He seems like a sound man, honest and trustworthy.
Roe is bad law. But, it’s also been around long enough to acquire the patina of precedent and has been said to cast penumbra faintly visible to the anointed. I don’t see such ghosts, nor do I wish to be governed by those who do.
Pico: You are correct, I disagreed, but your arguments do carry weight, GOP House moderates are unreliable, Senate RINO’s are in revolt, GWB’s numbers are down, and the situation is in flux.
I want the fight, but on favorable terms only. It would be foolish in the extreme to rush into a confrontation without making sure the troops are ready and willing to engage.
So, as of right now, I don’t see it. There’s time till the Alito confirmation vote. Let’s use it well. Fortuna favors the best prepared.
Black Jack (ee9fe2) — 11/15/2005 @ 12:20 pmIacta alea est, Black Jack.
Angry Clam (fa7fff) — 11/15/2005 @ 12:27 pmIf it’s a particular precedent that — as a result of the written and oral arguments presented before the Court — he finds invalid, why shouldn’t he argue against it?
Here’s the trick, Actus: if someone brings a case before the Court calling to overturn Roe based on spurious arguments, only someone truly deserving of the label “extremist” would argue to overturn based on those arguments.
And likewise, if an argument to overturn Roe is based on arguments more sound than those on which the original ruling was based, only someone truly deserving of the label “extremist” would resist the need to overturn.
McGehee (5664e1) — 11/15/2005 @ 12:46 pm…but arguing the arguments that argue against arguments … er … I think I should have proofread that before I posted.
McGehee (5664e1) — 11/15/2005 @ 12:47 pmI think it’s a pretty simple argument: Plessy v Ferguson was certainly a precedent, just as Bowers v Hardwick was a precedent, a fairly recent one.
It could even be argued that Plessy was more of an Arlen Specter super-duper precedent, given that it was in force for over half a century, far longer than Roe v Wade. It’s pretty difficult to argue that precedent should never be overturned.
It would be interesting if Judge Alito asked the Honorable Gentlemen, as they inquire about his respect for precedent, if they believe that Brown v Board of Education was wrongly decided because it overturned the effects of Plessy.
Dana R. Pico (3e4784) — 11/15/2005 @ 1:31 pm““I personally believe very strongly” in this legal position, Mr. Alito wrote on his application to become deputy assistant to Attorney General Edwin I. Meese III.”
He’s apparently backing off of the statements that he ‘personally believed in very strongly.’
actus (ebc508) — 11/15/2005 @ 1:32 pmWow, what a mercurial person! I mean, he said he personally believed that very strongly just TWENTY YEARS AGO.
Is there no one we can trust???
Angry Clam (fa7fff) — 11/15/2005 @ 1:46 pm“Is there no one we can trust??? ”
It would be like rehnquist deciding around about now that Bowers was wrongly decided, I guess.
actus (ebc508) — 11/15/2005 @ 1:47 pmOr Miranda, perhaps?
Angry Clam (fa7fff) — 11/15/2005 @ 1:52 pmThe difference between Plessy on one hand and Roe and Bowers on the other is that Plessy restricted individual freedoms whereas Roe and Bowers expanded them.
From a legal realist point of view, it makes sense. It’s a lot easier to reverse precedent and give/recognize rights than it is to reverse precedent and take those rights away.
Geek, Esq. (5dd2be) — 11/15/2005 @ 2:08 pmActus,
Casey “limited” Roe? Not quite true. Casey retained Roe’s essential holding. Everything in Roe that wasn’t at issue in that case was dicta, and the Court declined to adopt Roe’s dicta as the holding in Casey. At issue in Casey of course, was the Pa. law imposing conditions upon a woman’s obtaining of an abortion, including, for married women, the requirement that she certify that she had notified her husband, subject to the exceptions contained in that law.
The court in Casey fabricated the undue burden standard, which apparently means pretty much whatever a justice seeking to declare a state law unconstitutional wants it to mean — similar to the highly flexible meaning given to the formerly (that is, before Grutter v. Bollinger) well understood term “compelling state interest” in the equal protection analysis.
But that’s what fabricationists do — they fabricate.
Not to dwell on this point, but the next time anyone — even a Republican — says “just trust” the President, recall that every justice on the Court when Casey was decided, with the exception of Byron White, was appointed by a Republican President. And White was on the side of truth and justice in Casey, joining the Chief, Scalia, Thomas in pointing out that the right to abortion isn’t one found in the Constitution. We have 5 Republicans to thank for Casey — Souter (41), O’Connor (Reagan), Kennedy (Reagan), Blackmun (Nixon) and Stevens (Ford). Hugh Hewitt should recognize that as more than just a sandwich — it’s a 5-course meal and a bad deal, with or without tartar sauce. Bad things happen when Republican presidents go wobbly.
TNugent (6128b4) — 11/15/2005 @ 2:29 pm“Not to dwell on this point, but the next time anyone — even a Republican — says “just trust” the President, recall that every justice on the Court when Casey was decided, with the exception of Byron White, was appointed by a Republican President.”
You don’t need to tell me not to trust dubya
actus (ebc508) — 11/15/2005 @ 3:06 pmWhat about West Coast Hotels, then, Geek?
The Angry Clam (a7c6b1) — 11/15/2005 @ 3:07 pmNevertheless, actus, the Dems are still less trustworthy, so many of them having decided that political opportunism trumps both truth and national interest. They offer no viable alternative. Their leftward lurch is bad for the country, not just bad for the Dems.
TNugent (6128b4) — 11/15/2005 @ 3:17 pmRepublican presidents have been particularly wobbly when they have been weak, such as when they have been facing a Democratic-majority Senate, or – as recently – a divided Senate whose RINOs cannot be relied upon to break a minority fb.
If Alito is indeed “the one” to end the fb, he will enter office already having accomplished much.
No one can be certain how he’d vote as a Justice, but if he’s the catalyst that ends the fb, I think the odds of subsequent appointees practicing fabrication drop substantially.
Just my layman’s take.
ras (f9de13) — 11/15/2005 @ 3:33 pmafter basically a vote of no confidence in the President and the war in Iraq today by these libble boy Republicans, I smell a filabuster
alexandra morris (8d0335) — 11/15/2005 @ 3:34 pmalexandra,
The unbelievable fear of the MSM by Senators of both parties is truly mind-boggling. I try very hard not to use invective such as “no cojones” etc., but really, there are times when it fits, and this is one of them.
Whatta buncha wimps. Wow.
ras (f9de13) — 11/15/2005 @ 3:59 pmRehnquist is dead, so it seems a bit odd to talk about the possibility of him changing his mind on anything now. Perhaps a better analogy would be to say that Judge Alito changing his mind on Roe over the past 20 years would be like Justice O’Connor deciding around about now – give or take 2 years – that Bowers was wrongly decided.
Xrlq (5ffe06) — 11/15/2005 @ 4:01 pmFurther, the only time they made any kinda of real move at all recently was under intense pressure from the R base during the Miers’ nomination.
Conclusion: these are simple stimulus-response organisms that respond only to direct pressure in the short-term.
ras (f9de13) — 11/15/2005 @ 4:01 pmxrlq, actually O’Connor refused to join Kennedy’s Lawrence opinion which stated Bowers had been wrongly decided. Powell stated after he left the court that he had changed his mind on Bowers.
James B. Shearer (fc887e) — 11/15/2005 @ 4:30 pm“Perhaps a better analogy would be to say that Judge Alito changing his mind on Roe over the past 20 years would be like Justice O’Connor deciding around about now – give or take 2 years – that Bowers was wrongly decided.”
It would take us analogizing Alito to O’connor, yes.
actus (c9e62e) — 11/15/2005 @ 5:13 pmJames, it’s true that O’Connor didn’t join the majority opinion. However, she did concur in the judgment, thereby overruling Bowers even while claiming to do otherwise.
Xrlq (428dfd) — 11/15/2005 @ 10:03 pmWhat about West Coast Hotels, then, Geek?
As anyone outside of Cato Institute fantasy land will tell you, Lochnerism wasn’t about protecting the rights of workers, but rather the right of big business to exploit workers.
If you don’t believe me, try telling union members to their face that mandatory overtime is a violation of their rights.
Geek, Esq. (711f8c) — 11/15/2005 @ 10:06 pmBut, see, businesses do have rights too. You might not like those rights, but they exist, and they were taken away at the end of the Lochner era.
I mean, hell, I’d like to see the flag burning right taken away too, but I find it difficult to argue that the First Amendment doesn’t cover it.
The Angry Clam (a7c6b1) — 11/16/2005 @ 4:03 amAlso: fuck unions. Where’s the Pinkerton Detective Agency when you need it?
The Angry Clam (a7c6b1) — 11/16/2005 @ 4:03 amBut, see, businesses do have rights too. You might not like those rights, but they exist, and they were taken away at the end of the Lochner era.
Yes, much like criminal statutes takes away the right of people to rob, rape, and murder others.
Destroying Lochnerism was a clear victory for ordinary human beings, and a defeat for the Robber Barons.
In real terms, the end of Lochnerism led directly to the enhancement of the rights of individuals.
Geek, Esq. (3c46bf) — 11/16/2005 @ 5:32 amBy that logic, though, paternal consent for abortions would double the number of people with rights, too.
Angry Clam (fa7fff) — 11/16/2005 @ 5:33 amThe Geek, Esq., wrote:
Then, quite obviously, Roe is ripe for reversal, to give/recognize the rights of unborn children.
Heck, were I obtuse enough, I could make an argument that Brown could be reversed, as it would give/recognize the rights of people who wished to have their children educated in the same single-race environment that exists in most people’s homes.
Dana R. Pico (3e4784) — 11/16/2005 @ 6:02 am“But, see, businesses do have rights too. You might not like those rights, but they exist, and they were taken away at the end of the Lochner era.”
poor poor business. They don’t have the right to exploit anymore. In the 1860’s their right to buy people went away too. Ever since then its been all downhill.
“Also: fuck unions. Where’s the Pinkerton Detective Agency when you need it? ”
Probably torturing people in Iraq.
actus (ebc508) — 11/16/2005 @ 6:06 amWell, Mr. Actus, if you believe that business is bad, just what do you believe the situation would be if they all closed down?
Dana R. Pico (3e4784) — 11/16/2005 @ 6:28 amBy that logic, though, paternal consent for abortions would double the number of people with rights, too.
Agree that the expansion of rights inevitably leads to the dilution of rights.
Disagree that abortion and the regulation of labor are comparable.
Geek, Esq. (5dd2be) — 11/16/2005 @ 7:17 am“Agree that the expansion of rights inevitably leads to the dilution of rights.”
That’s all I was really going for- abortion just was a nice way to tie it back in to the topic.
Angry Clam (fa7fff) — 11/16/2005 @ 8:43 am“Well, Mr. Actus, if you believe that business is bad, just what do you believe the situation would be if they all closed down?”
I don’t think we have a choice between to going back ot lochner and all businesses closing down. The last 70 years go against that.
actus (ebc508) — 11/16/2005 @ 8:46 amThey’ve been dying a slow death.
The Angry Clam (a7c6b1) — 11/16/2005 @ 9:11 am“They’ve been dying a slow death.”
Really? I’d say over the last 70 years we’ve had quite a good productive economy.
actus (ebc508) — 11/16/2005 @ 9:50 amMr. Actus, I’d suggest that the liberal trend toward tighter and tighter regulations on business, things that so many of our Democratic
Dana R. Pico (3e4784) — 11/16/2005 @ 9:52 amdemagoguesfriends advocate, have been tried elsewhere; we have the example of the fabulous French economy looking us dead in the eye.Slovenia, Venezuela, China, Jamaica and Taiwan were the only countries (according to Bloomberg Financial’s data) that have markets that underperformed the United States this year.
That is slow death.
Angry Clam (fa7fff) — 11/16/2005 @ 9:59 am“Mr. Actus, I’d suggest that the liberal trend toward tighter and tighter regulations on business, things that so many of our Democratic demagogues friends advocate, have been tried elsewhere; ”
And so has lochnerism. Arguing against lochner is not an argument in favor of france. Its an argument in favor of the wealth and benefits produced by the last 70 years of the US economy.
actus (ebc508) — 11/16/2005 @ 10:03 amXrlq, O’Connor distinguished Lawrence (Texas) from Bowers (Georgia) because the Texas law applied only to homosexual sodomy while the Georgia law applied to all sodomy. So technically she was not overruling Bowers. It doesn’t matter much as Kennedy had 5 votes for his more expansive opinion.
If Roberts and/or Alito are minimalists like O’Connor this could be the fate of Roe v. Wade, a series of decisions which limit it without explicitly overturning it.
James B. Shearer (fc887e) — 11/16/2005 @ 4:55 pmI know, but all that proves is that Justice O’Connor is full of crap. The majority opinion in Bowers repeats the word “homosexual” at least once in almost every paragraph, and footnote 2 expressly declines to rule on the constitutionality of the statute as applied to heteros, noting:
Then, just in case it wasn’t crystal-clear they were ruling on homosexual sodomy, not sexual-orientation-neutral sodomy, the ended the opinion with this:
Query whether Justice O’Connor ever bothered reading the opinion she had signed on to.
Xrlq (5ffe06) — 11/17/2005 @ 4:20 pm