My Alito Nightmare

Treat this is a single question with a long preamble.

Way back when, well-before Mrs Alito's eyes began to well-up, before the Judiciary Committee began its hearings, I remember reading some bloggers wondering at the fact that the Democrats weren't gearing up to fight Alito, that they seemed to have decided that stopping him from taking a seat on the Supreme Court wasn't worth the fight.

And it wasn't the case that the Democrats were giving up just because they knew going in they couldn't win.  It seemed more the case that they'd concluded that he didn't matter.

There are three explanations for that, if it was true.  The first is just the natural human tendency towards wishful thinking.

The other is that the Democrats were confident that Alito's vote on future Supreme Court rulings wasn't going to make the difference the Right hopes it will.  It might have been Drum, it have been someone else, I'm still looking for the link, but I think it was Josh Marshall I read speculating that the Democrats had convincing evidence that Alito wouldn't upset the Court's present balance. 

That would mean they knew that Roberts was more of a moderate than he appeared, or Anthony Kennedy has let it be known that he won't go down in history as the Justice whose vote decided the end of Roe and 30 odd years of settled law and initiated a 50 state battle over abortion rights, or Sam Alito's entire career has been a con and once on the bench the sheep would throw off his wolf's clothing and his first action as a Supreme Court Justice will be to turn to his right and announce, "Joke's on you!  Scalito, my ass!"

That would make a great novel wouldn't it?  Alito as a Liberal secret agent, spending 20 years deep undercover, smoothly, smilingly, oh so reasonably giving his Right Wing "masters" everything they want, being the perfect little "Federalist," all the while secretly reporting to Ted Kennedy and Justice Stevens, biding his time until the day when they nominate him to the Supreme Court?

I'm afraid the first two possibilities, that Roberts is a closet moderate and Kennedy has suddenly got a lot less swing in him, are as fantastic as the idea that Alito's our Manchurian Jurist.

Washington's a big club, the members tell each other things they don't bother to tell the rest of the country, and it's not crazy to think that over cocktails somewhere Roberts has made it plain to the right people that he's not what the Right thinks he is.  I just think that if he had we'd have heard more rumors of that.

Have Kennedy's hinges become sticky and from now is the gate going to swing only one way, towards Souter and away from Scalia?  Members of the Club might know but again I think we'd have heard the rumors and in this case they wouldn't be whispered ones.

Of course even if they were shouted they still might not be audible to someone so far out of it as me.

The third possible explanation for the Democrats' sanguine acceptance of Alito's inevitable confirmation is that they didn't care.

They're willing to see Roe gone, and good riddence.  Abortion has been an albatross around the Democrats' collective necks for over a generation.   How liberating it will be not to have to defend it any more!  We can get back the Catholic vote.  We can maybe, finally convince religious conservatives to stop voting against their own economic interests and come home to the Democratic Party where they belong.

This raises the possibility that some of those Democratic Senators who voted for cloture Monday did it because they were afraid the filibuster might actually succeed!

If they were thinking like this they are in for a great big surprise.  Because it's not going to go away even if the Court throws Roe out the window all at once, which I don't think will happen.  I think the plan is to tear it up a little bit at a time.  Even if one single ruling wipes it all off the books, we're looking at only a few states that will immediately ban abortions.  The rest will do so, if they do so, after long, angry, and bitterly divisive campaigns that will not let Congressmen and Senators off the hook.  Even if they protest that they have no say in state governments, they will be asked to take stands, if only because their Republican opponents will be happy to take their own stands, loudly and proudly.

But all this is idle speculation on my part.  I'm not a member of the Club.  I don't know anyone who is.  I'm working towards a question for those of you who follow these things closely.

Are there any cases working their way towards the Court now that Scalito and company can use to rule against Roe, either in whole or in part, this term?

It's become conventional wisdom among Liberals that the Republicans do not want to see Roe overturned because it will cost them too much at the polls.  They'll lose more women's votes, they'll lose Libertarian votes, and they'll lose the votes of all those Catholics and social conservatives who will not have abortion on their consciences anymore---they will return to the Democratic Party, feeling free to vote their economic self-interest once again.

On top of that, without abortion to anger and energize them, the Religious Right might start staying home on election day.

Fat chance.

I think that Liberals are placing too much hope in the polls that show that most Americans support choice.

Even if the polls actually showed very solid support for choice, even if they showed that 70 per cent of the country was solidly behind a woman's right to choose, it doesn't matter if most of that 70 per cent resides in Blue States.

How many Red and Purple states are there where the polls show a closer to 50-50 split?

Now, to get to my nightmare.

If the Republicans are truly worried that overturning Roe will backfire on them, but they truly want to get rid of it, they'll hope it happens in 2007 when there are no Congressional or Presidential elections to worry about it.  They'd be even happier if it didn't happen until 2009.

But the Republicans don't run their own show.  Karl Rove does.

Suppose the Supreme Court strikes down Roe this spring.  What happens in the fall?

All across the country the elections become referendums on abortion.

Every candidate for Governor, every candidate for state legislator, every candidate for Congress and the Senate wil have to take a stand.

The Religious Right will have something more to fight for.

The Pro-Choice majority will be energized too, but, like I said, it won't matter if most of them live in already Blue States and Congressional and legislative districts.

Every single citizen in the state of New York could turn out to vote for Elliot Spitzer, Hillary Clinton, and 100 per cent pro-choice majorities in the State Senate and Assembly, but what would that matter in Kansas?

Or Ohio?

Or anywhere Democrats face a tough fight?

We know the Republicans are going to work the Terra angle as hard as they can.

I'm sure they're not over gay marriage.

Add a real fight over abortion to the mix...

So, back to my question.

Is there an opening for Alito and the gang to overturn or severely limit Roe this term?

Comments

[Redbeard]

yes... dkos had a diary: what do 7 states know that specter doesn't?

[AdorableGirlfriend]

Lance, this is a well written piece that was beneficial to all of us. You make a valid argument for exactly what IS going on in Washington. What distubs me most is that statement you made about the pro-choice folks living in the blue states. The country is deeply divided and the last time we saw this kind of dissention the civil war was taking place. I see little differnce between red and blue and north and south and racist and free society. History is doomed to repeat itself without intervention.

What disturbs me most in the separation is the folks that say they want big gov't out of the way and defend their gun owning rights, are the same folks who love to pull big gov't into everything and make laws left and right to stop others from everything except hate and gun ownership. This deep hatred of others and losing power is the problem at the core and one wonders when and where their quest for total control will stop.

Thank you for your eloquent piece and sharing our concerns!

[Claire]

According to a post the other day on the Broadsheet blog at Salon, illegal abortions are already on the rise. Back in December I read that the two or three doctors who perform abortions in North Dakota are flown in from Minnesota. There is a case (Carhart v. Gonzales) that could come before the Supreme Court about Bush's federal ban on abortions as early as 12-15 weeks. The chipping has already begun. I'm afraid, though, that the other side's chisel just got bigger.

[Linkmeister]

From this article in today's NYT:

There is no case on the horizon, however, that attacks the core holding of Roe v. Wade, the 1973 decision that found a constitutional right to abortion. Nor does it seem that Justice Alito would play a determinative role in such a case in any event, given what is known about the other justices' views. The court's line-up had stood at 6 to 3 in favor of fundamental abortion rights before the death of Chief Justice William H. Rehnquist and the retirement of Justice O'Connor.

Since Chief Justice Rehnquist was in the minority, his replacement by Chief Justice Roberts would not alter the balance if the new chief justice opposed abortion rights. Unless someone switches sides, then, Justice Alito could do no more than add a fourth dissenting vote.

However, there are several states which have laws on the books waiting to go if Roe is overturned, as cited above.

[Jamison]

Lance, I heard on NPR the other day that the Republicans have been moving cases forward as soon as the Alito Confirmation process started, so they could have Roe turned over as soon as possible. Personally I think the Democrats just took one of the greatest gambles in political history. They were faced with a grossly apathetic electorate that has been unwilling to really pour on the support to maintaining the status quo. Entire generations of people have grown up never knowing what Roe, Griswold, Brown, or any of the other important cases are about. They assume that this is the way it's always been and they don't care about what those cases mean for their lives. My theory is that the Democrats let this happen to create the kind of grassroots support that they've been lacking for years from the public. 93% of the the women that are interested in having birth control have it in this country. When the radical Republican justices start taking away those assumed "rights" suddenly there will be a rebirth of interest in preserving those rights, creating laws to preserve those rights, and electing Democrats to preserve those rights. But right now they don't really care and they've elected Republicans for the promise of security that they haven't gotten. So what we will likely see is a shift the radical right will kick back and watch our rights stolen from us, while the apathetic majority will suddenly awaken and try to save our country.

I think it's a massive gamble they've taken. It assumes that people want freedom instead of slavery. And given how asleep most people have been for so long in this country, I'm not convinced that it was a safe bet.

[nothstine]

For what it's worth, Scott Limieux posted this earlier this morning.

bn

[Scott Lemieux]

Lance--great stuff. In terms of cases, I have a post about that today--the federal "partial birth" ban is likely to come before the Supremes soon, and that can be used to gut Roe right away...

[harry near indy]

and if roe vs wade is overturned, look for legislatures all over the u.s. to act or not to make contraception illegal.

[Linkmeister]

Found at Alternet: Top Ten Reasons Democrats lost the Alito fight.

It reads like a script.

[CTC]

Is there an opening for Alito and the gang to overturn or severely limit Roe this term?

This response is from someone with no problem having Alito on the Supreme Court:

Do not be surprised if Alito sometimes confounds conservatives by facing an issue and deciding it on the basis of established law, not right-wing ideology. The impression I got from the hearings was that specific, settled legal principles would be his guiding force, the most important aspect in his mind in deciding a case. Don't be surprised if he upholds lower court rulings on either side of the fence because that's usually what happens and he seems to think that lower court judges should be shown deference. I truly believe he will choose not to legislate from the bench whatever outcome the Right wants to occur.

Re: your question. I don't believe it will happen this term.

CTC Jackie says hi.