Legislating from the bench

Overturning 35 years of precedent, a decision that you know will start a process that will end with between 25 and 30 states passing laws banning or severely restricting abortion, IS LEGISLATING FROM THE BENCH!

President Bush is desperately seeking to reassure the Religious Right that Harriet Miers will join with Scalia, Thomas, and Roberts in voting to overturn Roe v. Wade.  He is using the approved code words.  The code words were designed so that no Right Wingers have to out and say they long for the day when they can undo Brown v. Board of Education.  But the code works just as well for Republicans who don't want to have to tell anybody where they actually stand on abortion rights.  Conservative voters who are pro-choice are meant to have to guess whether or not the candidates they support mean that they will vote to appoint judges who won't go out of their way to overtun Roe v. Wade.  And anti-abortion voters are meant to be fooled into believing that the judges will do just that.

But the code only works if the person using it surrounds it with other ambiguous or coded language.

"People ask me why I picked Harriet Miers," Bush said when reporters asked about those assurances. "They want to know Harriet Miers' background. They want to know as much as they possibly can before they form opinions. And part of Harriet Miers' life is her religion.

(From the LA Times.)

The President just handed Enigma over to the enemy. (As if we hadn't cracked the code long ago.)  The White House immediately made a desperate lunge to take it back.

After Bush's comments Wednesday, White House spokesman Scott McClellan did not answer directly when asked if Miers' religion played "no role at all" in Bush's decision.

He responded: "That's part of who she is. That's part of her background. That's what the president was talking about in his remarks in the Oval Office."

McClellan added: "Faith is very important to Harriet Miers. But she recognizes that faith and that her religion and that her personal views don't have a role to play when it comes to making decisions."

Right.  We know.  Roe v. Wade was based on bad law and overturning it will be simply a matter of correction.  After that, it's out of your hands.

If all those state legislataures choose to pass laws banning abortion, we'll have had nothing to do with it.  We don't legislate from the bench.

But suppose the code isn't code.  Suppose it means that Bush appointed judges will be the kind of judge John Roberts pretended he will be.  How would that make the Religious Right happy?

Two words.

Gay marriage.

One more.

Euthenasia.

That's all that's left to them.

Assuming Roberts is what he isn't but wants us to think he is, assuming that Anthony Kennedy continues to be inconsistently consistent, and Roe v. Wade isn't overturned and prayer isn't allowed back into the public schools, as if it ever left, the Religious Right can only expect that not legislating from the bench means that the Courts will not overturn bans on gay marriage or uphold laws allowing doctor-assisted suicide.

Log Cabin Republicans, listen up.  Whatever you think the Bush-DeLay Republican Party stands for, or doesn't stand for, President Bush just promised the Religious Right that gays will never have the same rights or standing as straights, if his Supreme Court justices have anything to say about it.

So what are you doing still living in that Log Cabin?

Of course, I don't believe for a second that that's all that Bush was promising when he promised that Miers won't legislate from the bench.

Just one of the things.

I'm curious, though, to know if anyone with any actual understanding of how the language works and how the law works believes that, when a ruling comes down overturning laws or upsetting precedents they don't like, those judges aren't legislating from the bench, even if their decisions result in a whole lot of legislating going on all over the country.

To believe this, it seems to me that you have to believe two things.  The first is that any judicial ruling overturning a law is in wrong, that judges can only decide what a law means not whether or not it is Constitutional, so that any ruling overturning a previous ruling that made new law is simply restoring order to the land.  That negating something doesn't bring anything else into existence.  It also means that you think that state legislatures and Congress are the only ones with the authority to intepret the Constitution and that they also have the power to change it whenever they choose, without having to resort to a Constitutional amedment.

The Right believes this at the moment because they control so many legislatures including Congress.  But do they believe it where they don't have control?  Will they believe it when they don't?

I think they can honestly claim that they do and they will since they are very good at mobilizing their legislators to sponsor new laws and at getting referendums put on ballots.

But it also means that you believe that no questions are ever settled for good.  Whenever there's a change in the majority, everything the previous majority did is fair game.  If a Republican controlled state legislature passes a law banning gay marriage or restricting abortion and then gives way to a Democratically controlled legislature, the Democrats are free to pass laws overturning those laws.

Is the Right prepared to live with a constantly changing set of laws that in one decade favor their views and in the next favor views diametrically opposed to their own.

Of course they aren't.

These people are absolutists---by which I don't mean what they think they mean, that there is always a right thing to do and wrong thing to do and it's easy to know which is which and you never have any excuse then for not doing the right thing, a philosophy they obviously do not practice.  They are absolute in their self-regard.   They know they are right, whatever they happen to believe at the moment, even if it's something they didn't believe last week and that they won't believe next week when it's inconvenient for them to believe it.  They are right.  We are wrong.  Right must always triumph over wrong.

This is why, as Scott Lemieux has been at great pains to point out, Democrats and Liberals are kidding themselves if they think that if and when Roe v. Wade is overturned the Religious Right will just pack its bags and go home at last and we can just live with the Blue States allowing abortion and the Red States banning it, with, I suppose, NARAL buying bus tickets for all the poor women from Red States to get to Blue States for their abortions.

Pro-choice forces in Blue States will forever be fending off attempts by Anti-abortion forces to get the laws changed.

It's been argued by some Democratic pundits that letting Roe v. Wade go will deprive the Republicans of both the Religious Right's foot soldiers and its money-raising power.  Leaving aside the issues of gay marriage and euthenasia, abortion will not go away.  If anything the fight will be intensified.  You can't even say it will be confined to Blue States where the Right won't really stand a chance, unless you believe that the millions of pro-choice people in the Red States are just going to sit on their hands and accept that abortion rights are something you have to buy a plane ticket to get.

Every attempt to elect a Democrat to Congress or the state legislature will become a fight over abortion.

Perpetual war.  Always good for the Republicans.

Some people think that for that very reason the Republicans will never let abortion be outlawed completely and everywhere.

But if there are Republicans who cynically hope for the war to go on forever so they can benefit from the Religious Right's zeal and wealth, they are in for a rude shock.  Because there is one way for the debate to be ended once and for all.

The Supreme Court can rule that a fetus is a person.

But that won't be legislating from the bench, of course.

Comments

[Jennifer]

Yes, and maybe after outlawing abortion they will decide to do away with a woman's right to vote... and for that matter, why do black men need the right to vote? Maybe we can do without separation of church and state and can go back to one person telling us what God tells him to. Frankly, I am tired of men who will NEVER become pregnant telling everybody how it should be. They will never have to make a choice. They will never be told that they will die if they carry a child to term since they will never have to carry a child period. I apologize to any male who has actually supported a woman who needed to make a choice. You know, I am pro-choice, but I am also pro-life. They don't need to be mutually exclusive. How about we focus a little more on the rights of the living and breathing adults and children??? Don't the people in New Orleans deserve the same support from their government as a fetus? I find it hard to believe it is 2005, we live in the United States of America and we are discussing this.

[Red Tory]

As a devout agnostic, I really cannot understand the furious passion surrounding the issue of abortion. As a man, I am of course working at a deficit here to begin with, but have encountered the moral dilemma on a first hand basis, when as a very young couple, my wife and I struggled with the issue when my wife became pregnant. She was attending nursing school at the time and I was just getting my footing in the business world. Needless to say, this event came as a hugely disruptive blow to us. After some soul-searching discussions we eventually decided that abortion was not an acceptable option for us. (And then promptly went on to have three more kids in fairly rapid succession afterwards!) That said, I could never imagine seeking to impose my own moral compass on another person in this regard. Perhaps that’s the libertarian coming out in me.

Like your previous commenter, I too am pro-choice and pro-life and agree that these two concepts don’t need to be mutually exclusive. No one is “pro-abortion” per se, but there are definitely a whole range of circumstances where it’s an appropriate procedure (far too many to go into detail). I also believe that a woman has ultimate control over her own body. Not only her body, but the direction that her life will take as a result of that crucial decision – self-determinism in its most raw form, one could say. When you think about it from that perspective, it’s a wonder more so-called “conservatives” don’t back the concept of legalized abortion.

But I digress. Your argument that the elimination of Roe v. Wade will not only serve to perpetuate, but even exacerbate the controversy over abortion is spot on. This issue will never go away. It’s central to defining “us” from “them” when it comes to the mindset and agenda of the Religious Right. Even if this supposedly “settled law” is overturned, the tribal drums of the fundies will still beat in the blue states and it will always be a contentious factor come election time. And, as you correctly point out there are other issues waiting in the wings such as euthanasia and gay marriage that are almost equally divisive and promising when it comes to waging a “perpetual war” with the secular community.

[Pepper]

As a blue-state gal, I can vouch that those Democratic pundits who are toying with "Roe vs. Wade" are wrong to assume that everything will stay the same in the blue states. In California's upcoming special election, one of the propositions involves parental consent. And we were the same state that voted to define marriage as union between a man and a woman. I certainly didn't vote for it, but a disturbingly large number of people did.

It was Katha Pollitt, I think, who published recently on how overturning Roe v. Wade might galvanize the feminist movement. But I'd rather not take the risk. This involves the quality of women's lives, and it's not a chess game.

[Lance]

Pepper,

The Feminist Movement might get galvinized, as Pollitt hopes, but it will just help increase the perception that all Feminists care about is abortion and that's money and recruiting for the Right. So the fight just spreads to all 50 states and gets angrier and more intense. Like you said, in the meantime the risk to women increases too.

Red,

It's really Scott Lemieux's argument. I cribbed. I hope everybody followed the link to his post.