Centerfield

John Kerry (I refuse to call him JFK)is doing what the rest of the Democrats should be doing and that is showing some spine! Alito will undoubtably vote to overturn Roe and if there is anything that the Democratic party should stand up for, it is this. If they are willing to concede on this issue, what will they stand behind?
If you want to discuss who is out for #1, look no further than Johnson, Byrd, and Nelson. All three are up for re-election and if they vote to confirm Alito, they might as well change parties. It is understandable that these three red state D's are cautious, but if they will not stand with their Democratic brethren on this issue then why do we keep them as Democrats?

Yeah, imagine that; leading a filibuster against a nominee that most Democrats would love to see defeated. You'd think Kerry was a leader of the Democrats, instead of a cheerleader for the Republicans. Doesn't he know that to get the Republican nomination, he has to---?

Oh. Wait, he's in the opposition party. That means he has to lead in opposing the Republican party. My mistake. ;-)

All of West Virginia's statewide elected officials are Democrats, as are most of their Congressional delegation. Furthermore, last time I checked Republicans couldn't recruit anyone to run against Byrd. The other two, I agree.

Jean,

If you believe that the Democrats will win by only opposing Republicans, than I guess your logic would be correct.

Perhaps his intention is to reserve the right to say "I told you so".
Several things can happen:
The Supremes can make some frightening decisions and alarm Centrist voters.
Or, the SCOTUS stays somewhat moderate and the R's win in 2008.

Mathew,

Is the poll you mean? From what I read, a thin majority does support Alito, but that majority stems a big percentage which is confused about his views. If he does get on the Court (about 99.8 % certain, I'll grant), and votes to overturn Roe, then all the Dems who voted for him (and some pro-choice Reps, too) are going be in the political firestorm of their lives.

Now, Byrd, Nelson, etc. are Red State Dems; they don't have much choice. But Kerry's in a safe seat, in the safest Blue state in the country. If the above scenario plays out, then it's going to be "Kerry who?" with the Dem primary voters. If Alito doen't vote against Roe, then few (if any) DPVs are going to hold an anti-Alito vote against Kerry. And if Kerry does win the nomination (a long shot at best), then Alito will be old news by then. From where I'm standing, Kerry has nothing to lose and a lot to gain.

Rather than saying, "55 Republicans including Johnson, Byrd, and Nelson", I might change that "including" to "plus". But, more to the point, I agree with you that Kerry's filbuster is a self-serving attempt to pander to Dems like commenter TN and to become a hero on DKos - where they've been BEGGING for a filibuster. And you're exactly right, Kerry and the Kossacks *do* presume to know what the American people want. Even when the American people tell them otherwise. Which makes Kerry's remark about Bush giving "no thought" particularly amusing. John Kerry: finding new and innovative ways to lose.

I'm relieved Kerry isn't president. But I think your critique went too far when you smeared his sincerity. I wish people didn't do that so easily in these discussions.

So do you think Alito would be a good judge?

Because I certainly don't think so. So I hope the rest of the Dems have the balls to appose him. But by all means if you in the kneepad crowd want to see GWB piss all over the constitution, Alito is your man to let him do it.

When did the republican party become such pussies?

I'm glad Kerry is doing SOMETHING. Alito is a SCOTUS pick that I can't imagine many Dems and moderates supporting...not to mention some conservatives worried about over-reaching executive power.

Kerry may lack charisma and PR skills, but as Moderate Democrat, his actions and intentions are sincere and in the right place.

It's easy for people who are predisposed to not liking Kerry to assume the worst when he takes action on something.

As far as his political ambitions go, sure, doing this will endear him to many disenchanted Left of Center voters, but in the end it won't help him get nominated. I doubt anything will. But he's free to try....

I never understood how Kerry can be described as a "moderate Democrat", when his voting record is among the top 3 most leftist in the whole Senate.

The obvious. A filibuster will fail on cloture vote.

This has been widely predicted. If the Dems don't mount an attempt, they piss off the left base. If they succeed in filibustering, they trigger the nuclear option--and lose anyway, with negative long-term effects for the Senate as a whole. So their best play is to mount a filibuster, knowing it will fail on the numbers in a cloture vote thanks to the "Mod Squad."

The fun part comes after, with the confirmation vote. If the Dems manage to keep the "ayes" under 60 after cloture passes, the left base will be frothing. So they won't.

Pretty naked posturing. Though I really shouldn't use the term "naked" in reference to anything involving Ted Kennedy.

Mathew,

While I think you're being a bit harsh with Sen. Kerry, I think your overall point is solid. Kerry's reaching for vapors here. The fact that he's even considering a Presidential run again shows that much like the sh--ty campaign he ran, he still doesn't get it.

Also, why in the Hell do a lot of high-profile Dems keeping sticking up for Harriet Miers? We all know why the right sacked her, but she was hardly a good choice regardless.

I voted for Kerry, but how is it that he can be described as a moderate democrat? I only voted for him out of disgust for Bush. Usually during such circumstances, under which I don't like either candidate, I throw my vote toward a Libertarian or a Ralph Nader type, as I did in 2000. Whatever - that's not important, I just had a couple scotches, so I'm less coherent than I should be. How is he a moderate, again?

An independent myself, I am frightened at the prospect of the Democrats filibustering. Because I think it will further erode their credibility among those of us who are waiting, waiting, waiting to see them actually stand FOR something we can get behind.

Implications of a filibuster: (1) a respected judge who is eminently qualified gets to be portrayed as the martyr; people like martyrs a whole lot more than those throwing stones at the scapegoat of the month. (2) we get more film clips and sound bites of the high profile Democrats frothing and ranting --- as they did in the confirmation hearing; THAT's gonna really help their image of being leaders. (3) More logs thrown on the "polarization" fire, which is what has fueled the Republicans for years now.

I didn't vote for either Bush or Kerry because I decided that neither of them deserved to be POTUS. There have been times when I wondered if I shouldn't have held my nose and voted Kerry anyway. But this kind of a stunt has me back to thinking I was right --- he doesn't have the common sense or appreciation of the situation, or scope, to be President (either). Worst of all, he has no strategic perspective. He really IS just another hack.

John Kerry stepped up when we needed him but the numbers just weren't there to keep it going.

I have no problem with Kerry launching a filibuster if that is how strongly he feels about it. What bothers me is what the pundits will do with this. The right wing noise machine will shout "partisan", they'll say democrats offer no ideas, etc. the left wing noise machine will shout "awesome", they'll say it is a stand for truth, justice and the American way. However, none of that will make it past the 5-second soundbite filter most of us have developed. Most of us know how we fell about Kerry, and most of us know how we feel about Alito. The hearings themselves were impossible to watch (that was well-documented by some posts here at centerfield) so all most of us know is what the WH, the dems, FOX, MSNBC, the GOP, etc. want us to know. OK, I am rambling, but it is 3 AM, and work is dragging. I had a point, but I can't fidn it now....

Those for whom Miers was not extreme enough are salivating over Alito. Alito tends toward the Yoo/Gonzales kingly president constitutional theory that gives us the torture, the rendition, the secrecy and the warrantless snooping. Any politician, GOP or Dem, who favors Alito is a constitutional vandal.

Too much is being made of Kerry's political strategy and not enough is made about the real issue. Political commentary should resemble sportscasting. The real winners and losers are not Republicans and Democrats - they are the people affected by SCOTUS decisions.

Make that Political commentary should NOT resemble sportscasting.

All I have to do is take something Dick Morris said on Bill O'Riellys show last night (Don't ask, was in my car flipping through XM and hit it). To paraphrase what he said, he stated that Democrats don't need to come up with any ideas right now. All they have to do is oppose Bush. They don't have to have any ideas until a few weeks before the election. Sounds like what Kerry is doing to me. Made me about want to puke.

I don't really like the Republicans right now; but at least they have some ideas on the table, even if I may disagree with some of them. My problem with the Democrats is that they offer nothing, notta, zippo, zilch! That is a failed strategy. Republicans tried it for decades. They did not really make a significant push until they started to push an agenda. Until the Dems can put together a coherent agenda, how can I take them seriously. They are nothing more then the clown car at the circus right now.

Oh and if John Kerry is a moderate Democrat. Osama Bin Laden is from the moderate wing of terrorisim. Sorry. Kerry is a left wingnut just as much as W is out there in right wingnut land to me.

I've gotta admit, if I were in the Senate, I'd be REAL tempted to join Kerry. Because I think Alito's too close to the edge of centrism. I think he's open to evidence and persuasion, but starts his politics and decisions on a partisan basis. And I have yet to see any evidence that the Constitution is something that particularly concerns him, by severe constrast with Roberts.

Somebody in the Roberts discussion mentioned that he was as far to the right as couldn't be filibustered. Wel, Alito is the genuine article on that. RIGHT on the edge.

I think that Matthew understands Kerry alittle bit better than the rest of you because he's saying a lot of the things I said about Kerry when his prominence rose during his 2004 campaign. He though I was being harsh and defended Kerry, and having done so, I think his subsequent Kerry-watching helped him see what I meant.

I am not convinced that Kerry is necessarily insincere, but his constant subtle shifting of positions leaves him with the deserved stink of being about as political an animal as can be.

But lets be clear. Democrats who think Alito will be a bad justice for the future of the country have a genuine right and responsibility to oppose his nomination, at least by voting no, and possibly by filibustering. Part of the question really is one of what sort of resolve the democrats want to show. A year or so ago the GOP may have been spoiling for the opportunity to change the rules and disallow filibustering presidential nominations. But that was then, when the specter of this chicken coming home to roost appeared remote. But now, if democrats dare them to do it, will they?

The other part of the question for democrats is the proper and obvious one I mentioned earlier, which involves the perception of how Alito's addition will affect the country. If Alito doesn't turn out to be an arch conservative boogeyman and doesn't fulfill the left's nightmare visions, will those predicting it now change their views? I doubt it. My hope is that democrats vote straightforwardly based what they really think the effects of Alito's nom will be, opposing him only if they really think he'll send us astray.

But the most cynical part of the equation is really this. As the spectre of an arch-conservative scotus majority nears and becomes palpable, how many democratic politicians begin to sense that it could be aboon for the democratic party if Roe were overturned and Americians were left without a declared constitutional right to privacy.

My guess is that if push indeed does come to shove and SCOTUS faces the prospect of striking down a 30+ year old ruling and depriving us of our declared constitutional right to privacy, they'll blink.

Senator Lieberman was at least decent and honorable enough to say, look, Judge Alito is a good and decent man and an emminently well qualified judge. But I don't agree with the way I think he's going to rule, so I'm voting against him. No BS about "CAP" and Vanguard, no strawmen, no inflammatory rhetoric.

Now, I don't agree with him on the issue, but at least he approached it in an honest, civil way.

Brian, Plessy was well over 30 years old when it was overruled, you know. As were many other horrible, horrible Supreme Court rulings. Age of the decision is not a strong argument to make for leaving it alone... and certainly not one made by any of the more activist justices when it comes to overturning any rulings they don't like. If the Constitution is a "living document" subject to more and more change by the justices the older it gets, why do precedents get stronger as they age rather than weaker? At least you acknowledge that abortion is a "declared" right rather than an actual, written in the Constitution right.

Rob,

Who is the "kneepad crowd?" Anyone that disagrees with you? Is that the level of intellectual discourse that you typically practice? Of course, I'm sure you won't respond because you would actually have to make a coherent argument.

As for the rest,

Kerry is far from my favorite guy, I thought he was an absolutely incompetent candidate, but I don't see how you can paint him as some sort of left wing radical. I guess it depends on if you think all liberals are radicals and voting the liberal position is, ipso factor, evidence of radicalims. Some of his comments here are stupid--"a coup?" But that doesn't make him a radical.

The fact is, the judicial nominating hearings have become a joke. Everyone knows how they are going to vote before they begin. Short of saying that he believed in a woman's right to abortion under any circumstances, the Dems opposing him would have opposed him regardless. They could have dispensed with the hearings. Ted Kennedy continues to show that he has not had an original thought in his life and is an absolute intellectual midget. (I suspect JFK would laugh at Ted.) It's one thing to say that Alito wouldn't be a good judge and I'm going to voet against him, etc. but it's another thing to say he opposes equality and to imply that he is nothing but a racist. That should be beyond the pale even for Ted, but I guess not.

Obviously, if the Democrats think Alito would be that bad, they have an obligation to try to stop him. But Alito is not Bork, whose demeanor could scare anybody. Alito comes across as a decent, smart guy and smearing him could really come back to haunt the Democrats, IMO. But I guess that puts me in the "kneepad crowd."

I am concerned about his views on executive power and I would certainly prefer someone that is less conservative politically. But, I'm getting a little tired of statements like this-- "Any politician, GOP or Dem, who favors Alito is a constitutional vandal." So much for tolerating others' ideas. But then, I'm only a "US centrist."

Also, remember that the right to privacy is one thing, and the right to abortion being contained within some right to privacy is entirely different. One could find a general right to privacy, as in Griswold, without finding that the right includes the right to terminate what many believe to be a living human being before its birth. I know "privacy" is the Democratic buzzword of the day, but at least be straight forward about what they are really trying to protect... the right to abortion on demand.

If Kerry and the Dem's feel that Alito is such an egrigious choice that he isn't qualified to sit on the bench then the appropriate action would be to fillibuster.... and if they sincerely believed that I wouldn't be disgusted by them, although I would question thier grasp on reality. However, if that were really the case then they should have fillibustered him when he was nominated for the appeals court. If some-one were truely so egregious that they warranted a fillibuster then they shouldn't be sitting on a bench anywhere but the park.

If Kerry and the Dem's however fealt that Alito was qualified but didn't want him on SCOTUS because they didn't think they'd like the way he ruled then the appropriate action would be to allow him a vote and then vote NO.... I might not agree with them but I would respect thier actions.

The bottom line, in a democracy....you work to try and convince others of your position.... but if you fail you accept the will of the majority and move on.... unless what the majority wants is so moraly egregious (i.e. slavery, the holocaust, etc) that it simply can't be contenanced by a person of conscience. What Kerry and his faction are doing is more reminiscant of spoiled children who throw a tantrum when they don't get everything they want..... that's what the image that the American public is going to be left with from this.....Alito's wife in tears.

Alito may well be a very conservative Justice....but certainly no more conservative then Ginsburg was liberal.

Finally, lets all remember that 20 years ago the same drama was playing out....only it was "Souter" who was too arch-conservative to be sitting on the bench....frankly alot of those on the Left would be making the exact same noises about ANY nominee that was to the right of Lennin.

Brian, Plessy was well over 30 years old when it was overruled, you know. As were many other horrible, horrible Supreme Court rulings. Age of the decision is not a strong argument to make for leaving it alone... and certainly not one made by any of the more activist justices when it comes to overturning any rulings they don't like. If the Constitution is a "living document" subject to more and more change by the justices the older it gets, why do precedents get stronger as they age rather than weaker?

Pat, I'm not arguing that age is a good reason why it shouldn't be overruled. I'm arguing that it stands as reason why judges will in fact feel some reluctance. That's all. I agree that age shouldn't matter by itself.

At least you acknowledge that abortion is a "declared" right rather than an actual, written in the Constitution right. Actually, not quite. All of the rights deriving from the constitution are, IMO, declared rights. However, I agree that the method and type of declaration varies. Many of the rights were explicitly declared via the process you advocate, and some were found to be implied by a process I am willing to tolerate on rare occasion.

Also, remember that the right to privacy is one thing, and the right to abortion being contained within some right to privacy is entirely different. One could find a general right to privacy, as in Griswold, without finding that the right includes the right to terminate what many believe to be a living human being before its birth. I know "privacy" is the Democratic buzzword of the day, but at least be straight forward about what they are really trying to protect... the right to abortion on demand.

Good point. I was actually speculating about that very point when I thought about how and why SCOTUS might express reluctance. IMO, the justices' reluctance is most likely to be in the form of an unwillingness to declare nonexistent a right to privacy that the law has held to exist for 30 years. This did lead to speculate just as you did, that the justices could rule that privacy indeed did exist, but that it somehow did not apply to the right of an induvudual woman to privately make the choice to have an abortion without state interference.

I concluded based on only a cursory review of that idea that such a ruling who probably have to make up out of virtually non-constitutional cloth some sort of defining principle about what privacy entailed. Such an act would IMO be activist construction, (which in fact wouldn't make it intrinsically bad, IMO, as you know).

Constitutional philosophy aside, it's at least plausible that the basis for such an argument would be that because a pregnancy inherently involves multiple individuals, it can never be a truly private matter. That might leave us with a kelo-like or commerce clause dilemma of asking "what's left?" Because we'd be left concluding that only one's unshared thoughts and purely solitary activities are truly private, since all actions between persons including any speech heard by others can arguably be seen as interaction which is not truly private.

It's a real can of worms, which leaves me wondering who among SCOTUS seems to have the temperament of one eager to open such a can. I believe that Thomas and Scalia have such an eager temperament, Thomas because he defies process, and Scalia because he's really ideologically driven on a subconscious level by socially conservative values. But neither Roberts nor Alito strikes me as being as eager in temperament. We'll see.

I know "privacy" is the Democratic buzzword of the day, but at least be straightforward about what they are really trying to protect... the right to abortion on demand.

If the right thing (privacy) gets protected for the wrong reason(abortion politics), that's another one of those things I am willing to tolerate. Not like. Not adore. Not advocate as a dominant, primary, or even common method. Tolerate.

I remain unconvinced that Roe can't endure, and I also remain unconvinced that it will ultimately endure in the form of a perfect firewall for "abortion on demand" as you call it. I suppose you find that view vexing?

Mathew why are YOU presuming to know what the American people want? YOU sound like a petulant jerk and a frightened child, fearful of the wrath of the right. As a centrist I would think you would oppose Alito and want to do whatever possible to stop his becoming a Supreme Court Justice. I would not want a left wing extremist on the SC either. We need to keep it moderate and reasonable. I'm really sick of Democrats who are being castigated by centrists and conservatives for actually doing their job instead of just rubber stamping bush as if Congress was the politburo. These judges are liftime appointments and ought to be scrutinized strictly. Far from being self-centered, Kerry is putting himself out there for severe derision and ridicule. It would be far easier and safer for him personally to just stay quiet rather than stirring things up. Taking liberal positions on anything these days sets one up to be a pariah. As one of the other posters said, the Democrats who are planning to vote in favor of Alito are the ones looking out for number one. They are taking the safe route because they are up for reelection.

WHQ, let me get this straight, you don't believe Kerry is a moderate, yet you would throw your vote to a FAR LEFTIST like nader? I fail to see the logic in this.

Susan on what do you base that Kerry is among the top 3 leftists in the Senate on? Can you cite an objective study or are you just mimicking GOP talking points from the election campaign?

This is something the left and right actually agree on.

From judges on the left, Kerry has earned a lifetime rating of 93 from the liberal Americans for Democratic Action, which selects key votes each year and rates lawmakers according to a perfect liberal score of 100. That's above Kennedy at 88, tied with Leahy at 93, and below boxer at 96. So top 2 or 3 as I said.

From the right, Kerry has a lifetime rating of six from the conservative American Conservative Union, which uses a similar methodology to rate lawmakers according to a perfect conservative score of 100. Kerry's rating is the same as Leahy's and New York's Charles Schumer's, although it is slightly less liberal than Kennedy's lifetime rating of three. OK I guess I should have said top 3 or 4.

Thanks LAURA. I made the "moderate Dem" remark that SUSAN and WHQ took issue with.

So here's my answer:

First of all, the "Top 3 Leftist" or "most Liberal" charge was, as are most things in the election cycle, a false fabrication derived from an intentionally sloppy twisting of facts.

That ranking that Bush and Co. refered to comes out every year based on a subjective view of what constitutes a "liberal" vote. It could be voting against a tax-cut, or voting for the higher-yielding revenue of 2 tax cut proposals etc. You get my meaning.

More importantly, The ranking's year that the GOP kept touting was 2003 when, because he was campaigning, Kerry only cast like 2 votes...one being against the second round of tax cuts and I don't remember the other.

HOWEVER, over his whole career ( a LOT of votes in differnt contexts) he ranked in the middle of the current Democratic Caucus....somewhere around 18-20.

That's why he's moderate.

OK, FOLLOW UP on Kerry's Moderate-liberal ranking.

It's been so long, I went back to Factcheck.org and looked up the article.

The ranking I refered to put him at 11th. ANOTHER put him at 22 or 24.

Sorry.

forgot the link:

http://www.factcheck.org/article284.html

Liberal? Most certainly. MOST liberal? No. Moderate? Compared to the middle of the overall political spectrum, no. Being a touch left-of-center in the Democratic Party doesn't make him a moderate in comparison to anything but the left wing of the Dem party.

Tully,

Well when I see "Moderate Democrat", I mean moderate among his party peers. Most Dems ARE liberal when put up against the entire political spectrum. In my wording, "moderate" modifies "Democrat" not ALL politicians.

WHQ, let me get this straight, you don't believe Kerry is a moderate, yet you would throw your vote to a FAR LEFTIST like nader? I fail to see the logic in this.

I don't get your failure. I voted for Kerry, thinking him liberal. Why would voting for Nader contradict that? My thinking Kerry is not a moderate doesn't preclude me for voting for a leftist anyway, whether I voted for him or not. Besides that, when I vote for Nader, it's not because I want him to be president. It's my small way of saying "Up yours" to the major parties for offering up such crappy choices.

Laura, please cite me 3 legal opinions by Judge Alito which you believe reveal his "extremist" tendencies. Please also address why you believe all of his fellow judges on the court of appeal, rank liberals and conservatives alike, strongly supported his appointment.

P.S. I think Mathew is not presuming to speak for the American people but is merely suggesting that the 2004 elections, which reelected President Bush and increased the Republican majority in the Senate, was the clearest evidence of the actual desires of the American people.

P.P.S. Senator Kerry has a lifetime "liberal quotient" (LQ) of 92 from Americans for Democratic Action, "America's oldest independent liberal lobbying organization." By comparison, Senator Kennedy has a lifetime average of 90. The 92 actually makes him tied for about 8th most liberal. Rhode Island's Sen. Reed is the most liberal with a 99 lifetime LQ. Those centrists who support Russ Feingold as a good, moderate guy should be aware that he is in a 3-way tie for second most liberal Senator, at a 98 lifetime LQ (tied with Schumer and Durbin).

Can you even consider him moderate among Democrats? He may be moderate among Democrats in Massachusets. Maybe Califronia too. Not sure he would be considered moderate when compared to your flyover state Democrat.

Pat,

But what about if you are comparing such men as Kerry not to other senators, but to all congressmen and to all democrats?

Senators are generally less extreme than their state's congressman, and most congresscritters are less extreme than a substantial portion than their constituents, right?

By liberal ratings, the ADA, Kerry's lifetime rating is 92, which is more leftist than Kennedy.

The only ones further to the left of Kerry are:
Boxer 96
Durbin 98
Mikulski 94
Lautenberg 93
Schumer 98
Reed 99
Leahy 93
Feingold 98

tied with Kerry are
Akaka 92
Harkin 92
Murray 92

So out of 100 senators, Kerry is in the most leftist 9 to 12%. Even just among Democrats, he is in the most leftist quartile.

By conservative lifetime ratings he is among the very most leftist 2 or 3. These results were not arrived at for purposes of the 2004 election, but was the cumulative result of consistent ratings every year.

Brian, I think that principle holds true for the Republicans, but my general impression is that the most liberal Democrats are in the Senate right now. I haven't checked the rankings to verify that, though. Senator Paul Wellstone had a perfect 100 before his untimely death.

One of the things that absolutely fascinates me, though, is to compare the rankings of same-state Senators. As a general rule they align somewhat... but there are a few places where one is very liberal and one is very conservative, though both were elected by the same people!

John and Laura... the rankings Susan and I have cited are from the Americans for Democratic Action... a self-proclaimed liberal group which is very proud of its liberalism. They select the votes to tally based on what votes they think most exemplify liberal issues for that year. The liberals themselves say that Kerry is the 8th most liberal Senator in the Democratic Party.

I smell liberal guilt. The thing is, no one has really made a value judgement about liberals on this thread, other than the implied ones made by those who think Kerry is moderate.

This being a centrist blog, by definition, being too far to the extreme of either side would be considered bad.

Which, Stan, begs the question of what is "too far to the extreme" and whether a particular candidate or judicial appointment meets that criteria.

And centrists should be for the best policies, whether they happen to be labelled "extreme" or not.

Stan--yep.

I'd add to all the above posts that IMHO the public perception of a Senator as "liberal" or "conservative" is largely a result of their ideological inflexibility. There are some certified liberals and conservatives in the Seante that I really admire, people who understand that they represent ALL of their constituents, of all viewpoints. Then there's the knee-jerkers who worship party and/or ideology uber alles, regardless of what's best for their constituents or the nation. A plague on them.

"Constitutional philosophy aside, it's at least plausible that the basis for such an argument would be that because a pregnancy inherently involves multiple individuals, it can never be a truly private matter. That might leave us with a kelo-like or commerce clause dilemma of asking "what's left?" Because we'd be left concluding that only one's unshared thoughts and purely solitary activities are truly private, since all actions between persons including any speech heard by others can arguably be seen as interaction which is not truly private."
------------------------------------------------
BK,

No need to go that far. Part of the routiene business of the courts is to mediate between the conflicting rights of individuals. It's well established that even rights explicity enumerated in the Constitution are not absolute when they come into conflict with other rights.... the fameous yelling "Fire" in a crowded theatre test, for example.

All the Court need do to send Roe down in flames is not to un-discover the "right to privacy" but to simply discover the "personhood" of a feotus. If they were to find as a matter of legal fact that a feotus was a "person" then they wouldn't need to invalidate the "right to privacy" or even for a person to determine what sort of medical procedures they should have..... just declare that such rights were constrained when they resulted in the death of another "person"..... pretty much the same sort of restrictions that exist on Speech and other enshrined rights.

Furthermore, they'd have some reasonable legal precedent for such findings. It's been fairly well established practice now (at least I think so) that when a pregnant woman is killed the person responsible is charged with not one death but two. Rather contradictory, don't you think, that when an unborn child is killed by person A ( drunk driver) it is legaly considered a "person" but when that exact same entity is killed by person B (it's mother) it is considered a "thing" not a person? Heck, SCOTUS could even use "advances in pre-natal science and the study of brain development" as cover for such a declaration. Lets face it, the definition of what
constitutes a "person" is one of those things which has been a little nebulous in the law.

As you know, I'm not a Right-To-Lifer.... pretty much precisely because after thousands of years of the wisest and most learned minds of civilization struggling (and failing) to define what it means to be human, I'm sure as heck not arrogant enough to think that I have the answer....which pretty much dooms me to be permanently undecided on the issue. I just think Roe was a horribly flawed decision (from a procedural basis) and aught to be struck down for that reason alone.

P.S. Were I a betting man, I'd put money on you nailing it exactly with this....

"I remain unconvinced that Roe can't endure, and I also remain unconvinced that it will ultimately endure in the form of a perfect firewall for "abortion on demand" as you call it."

..... Mostly because I think that position most closely reflects the views of the majority of the American public...... and because that'll be the easiest position for SCOTUS to take without starting a full-scale riot.... and despite thier life-time appointments I really don't think that too many of the Justices are overly enamored of the prospect of starting riots.

Not to hijack Brian's topic and turn it into another abortion thread (which we've been round and round before), but saying that "We can overturn Roe easily. Just declare that it's a flawed decision and that the fetus is a person." is a bit like Napoleon saying "It's easy, men. We just march into Russia and take Moscow."

Invading Russia is easy; it's the biggest country in the world. Taking Moscow is a task that many great generals have failed, and many will fail again.

Saying Roe is flawed is easy; many of its supporters agree with that. Declaring that the fetus is a person is problematic at best. Even charging the murderer of a pregnant woman with two murders is a recent phenomena, and it's been successfully challenged. It's easy to say that a fetus a week before birth should be regarded as a separate person. It's far, far harder to declare a woman whose period is a couple days late should be charged with murder because her fertilized ovuum failed to implant. If that's the case, then every sexually active woman between menarche and menopause will automatically become a suspected murderer.

But hey, that's just a little over half of humanity. Men's right to privacy will still be respected. And that's what counts, eh? ;-)

Men's right to privacy will still be respected. And that's what counts, eh? ;-)

Not if they happen to be gay. Remember those sodomy laws?

Too true. My bad.

Of course, once blastocysts are declared "persons", then sperm will be the next thing the government is called on to defend in the never ending war against sex. There's already Sam Brownback's campaign going after gay men in the name of "innocent sperm forced to swim into feces."

(I'm not sure how gay sperm is innocent, but the gay man is not. Must be the same logic that declares a mass of cells the size of a pinpoint is a "person", while the woman it occupies is merely a "carrier".)

Blue Jean,

Must be the same logic that declares a mass of cells the size of a pinpoint is a "person", while the woman it occupies is merely a "carrier".

But isn't this kind of using a "straw man" to force this issue to its ideological extreme? I mean, after all, reasonable people can differ on what legally constitutes a "person," just as reasonable people differ on when a "child" should legally be accorded the status of an "adult." But in the latter case, we allowed the citizens of the Republic to make that distinction through the legislative branch and set an arbitrary age (or ages, as it turns out), understanding that we all know there are numerous 17-year olds who are far more qualified to be an "adult" than many 19-year olds.

In the case of abortion, the Supreme Court made that decision for us, and that's really what upsets many of Roe's critics (its critics concerned with process rather than politics, anyway-- there are obviously dozens of motives for why someone is pro-life... or pro-choice, for that matter).

In any case, isn't it possible that if the Supreme Court weakened or overturned Roe that it would go to Congress (or the fifty state legislatures) to officially define what stage of the fetus legally constitutes a "person"? My sense is that there are many Americans (perhaps even enough to tip the balance in each direction) that would be comfortable with a legal definition of "person" that did not include "a mass of cells the size of a pinpoint," but that did include "a fetus one week before birth." I'd be willing to bet that Congress (or the fifty state legislatures) would ultimately agree to a compromise that found a "person" existed somewhere in between those two extremes... which, by the way, is effectively not much different than what Roe, Webster v. Reproductive Health Services, and Planned Parenthood v. Casey have all decided: that a woman's right to an abortion exists, but it is not absolute, and can be restricted for numerous reasons, such as health, safety, and viability.

Of course, I'm no expert on American law or the political process, this is just my own view. But I don't see why the issue of what constitutes a "person" shouldn't be defined by the will of the American people-- just as we define what constitutes a "child," "adult," "citizen," or even "senior citizen"-- with all the legal protections, rights, and responsibility that those titles confer.

I also don't believe that a majority of the American people see "a mass of cells the size of a pinpoint" and say that is a human life... Just as I doubt there's a majority that see an unborn fetus at eight months and three weeks and say that is not a human life. The process would almost certainly strike a compromise somewhere in between... But it would be a process decided by the American people instead of the "nine unelected Justices," and therefore would require a transformation in American thought in order to change it-- a far cry from the current state, which merely requires five like-minded individuals installed by Presidents and approved by Senators, which invites the kind of political posturing that is not conducive to centrist politics.

Or maybe I really don't know what I'm talking about.

My sense is that there are many Americans (perhaps even enough to tip the balance in each direction) that would be comfortable with a legal definition of "person" that did not include "a mass of cells the size of a pinpoint," but that did include "a fetus one week before birth."
Right. and the law as it works now lets each person make that decision themselves, for their fetus. As you said yourself:

...after all, reasonable people can differ on what legally constitutes a "person," just as reasonable people differ on when a "child" should legally be accorded the status of an "adult."

That's something that confuses me, acknowledging that people differ and that this makes sense, but then criticizing the courts for a decision that honored thisa variance by leaving the decision up to affected people.

After all, scotus doesn't force people who oppose abortions to have them. Yet many advocate changing the laws to allow women with undesirable pregancies to be forced to bear those pregnancies to term.

IMO it's a little peculiar for pro-lifers to try and grab the democratic moral high ground by claiming that scotus has acted imperially in taking away the "democratic" right of people to pass laws dictating how others should handle unwanted and/or accidental pregnancies.

Well, I'm not a pro-lifer. Not even close to one, to tell you the truth-- I'm actually closer to pro-choice than pro-life (although I reject both labels, as I do any either-or label).

However, in response to your questions, I would say that it's not within an individual's authority to determine what constitutes a "person" and what does not. That issue shouldn't be left to persons individually (as you describe it), but rather collectively-- it should be decided upon by society as a whole. After all, we don't let individuals decide for themselves what constitutes an "adult" or a "citizen" or any other legally distinct status-- that's been established by society as a whole. If you don't believe me, invite the fourteen year old down the street to watch an adult movie with you and tell everyone else about it. Or try serving vodka to your seven year old child and their guests at the next birthday party. Society as a whole has determined what constitutes an "adult" and the rest of us are obliged to live our lives in accordance with that ruling. If that means it sometimes infringes upon our pursuit of happiness, well, that's just the way it works.

Now after society has agreed what does and does not constitute a "person," then it's pretty hard to argue that a woman would not have the right to do whatever she wanted to "a mass of cells the size of a pinpoint"-- if it's not legally a person, then her right to control her body is not infringing upon the rights of a legally-defined "person." But once that "mass of cells" reaches the point of "personhood," then that decision no longer rests with the individual.

In any case, I think you're being a little flippant about why pro-lifers think this way. Remember in their minds, the fetus is a human life-- Catholics believe that human life begins at conception, in fact. Now it's true they don't personally have to take that human life when they find themselves in an inconvenient pregnancy (although, statistics tell us that some do), but that doesn't make them feel any better that thousands of humans (in their belief) are being destroyed simply because other humans don't find it convenient. That's why this moral issue is so emotional for them. Similarly, your line of reasoning-- that it should not bother them since they can make the moral choice in their own lives-- pales in comparison if everyone else is turning a blind eye to what they consider "legalized murder." Here a slavery analogy is somewhat fair: should abolitionists have turned a blind eye to slavery since they themselves could choose not to own slaves? Or was the very fact that some humans were allowed to own other humans as property offensive in and of itself? Property rights are important-- more important than the right to privacy, in fact-- but the people of the United States decided that there would have to be limits when this hallowed right to own property conflicted with another human being's basic freedom. To pro-lifers, however important the right to privacy might be, it pales in comparison to another human's right to live.

Again, I'm not a pro-lifer, so I'm trying to explain their arguments as best as I understand it (an pro-lifers on this thread feel to correct me). But to tell them that they shouldn't care about abortion since they don't have to have one if they don't want to is completely misunderstanding their positions. And if you're going to attempt a discussion, you should at least try and understand their position.

This is all fascinating stuff, to be sure. But I am curious. The term "society" stuck out at me.

Bobby, when you say Society do you mean American Society, or the World Society? Or the Western World society? Or the English Speaking World society, as it would most certainly make a difference. Society could even be broken down within the United States. The Society of the South West is not the same as the Society of the North East. What's good for New Mexico isn't always good for Maine.

So assuming the will of Society in the South declares a fetus a person, but the will of Society in California doesn't. Aren't we then still torn by the divide? Won't Pro Lifers in the south still want abortions ended in California? I don't know why they would be content with no abortions in Mississippi but abortions anywhere else. After all, that would follow the argument that a person doesn't have to have an abortion, only that they have the right to one.

What if Georgia writ a law, making it illegal for a woman to leave the state for purposes of having an abortion in New York or any other state which so allowed it?

Following your analogy of slavery; Society decreed that slavery was permissable, even if the Abolitionists believed otherwise. Society changes. It adapts, and evolves.

A state can pass a law banning abortion one year only to change it ten years later as the mood of society changes. That is the beauty, in a sense, of a SCOTUS decision, because some few things; murder, slavery, segregation etc, are sins that Society might tolerate for whatever reason, but lifetime appointed judges would not. Of course, being human, even lifetime appointed judges often rule incorrectly.

Also, there are societies in Europe where children do drink alcohol, and watch television with programs that could arguably be called "adult films". And it wasn't too long ago that a society in Europe decreed that Jews weren't human.

Using society as more than a gauge of the shifting winds, is, I believe, a flawed concept.

After all, how far does one take it? Yesterday, it was a fetus, today, it's a person, so I have to pay for two movie tickets? (one at child's price, of course). Yesterday I couldn't drive in the carpool lane, but today I can? Yesterday I could't write my fetus off as a tax dependant, but today I can?

Using society as more than a gauge of the shifting winds, is, I believe, a flawed concept.

That's a pretty elitist statement there. I mean, the whole point of being a democracy is that the people will make decisions and govern ourselves. Where do you draw the line with this "ignoring the will of society" concept? Should we just go ahead and empower panels to dictate our national security or our economic policy, since the American people are so fickle? If the American people can't even pass laws defining what constitutes a "person," then we might as well establish some kind of oligarchic dictatorship and put this experiment to an end. We might as well let the "nine unelected Justices" go ahead and pass all our laws and establish all our policies, instead of interpreting the law-- the way they're supposed to under checks and balances. Of course, that would be unconstitutional-- not that anyone really cares about the process, though, right? It's all about the outcome?

Bobby, when you say Society do you mean American Society, or the World Society? Or the Western World society? Or the English Speaking World society, as it would most certainly make a difference.

For the purposes of this discussion, I mean American society, i.e., the People of the United States. The Constitution is pretty clear in stating that it is the supreme law of the land, and there's really nothing in American common law tradition (a few modern judges and Justice Breyer, notwithstanding) to suggest that any other country's opinions have any bearing on American laws (except, of course, through treaties, but then only because it becomes federal law). The European countries are free to develop their own rules regarding "personhood," just as they already do with adulthood and citizenship, and everything else. Their sovereignty, their laws. But no bearing on what we do in America.

So assuming the will of Society in the South declares a fetus a person, but the will of Society in California doesn't. Aren't we then still torn by the divide? Won't Pro Lifers in the south still want abortions ended in California? I don't know why they would be content with no abortions in Mississippi but abortions anywhere else. After all, that would follow the argument that a person doesn't have to have an abortion, only that they have the right to one.

That depends on whether it's a federal or state responsibility. If the SCOTUS holds that defining "personhood" is a federal responsibility, then Congress has the responsibility for setting forth these terms-- and let the sparks fly! If the SCOTUS determines that it's a state authority, then the fifty state legislatures will each have to reach their own compromises-- just as they did with, say, the legal drinking age before the federal government extorted them with highway funds. That's how federalism works. In this instance, some states would almost certainly allow abortion well into the third trimester, while other states would prohibit it somewhere in the first trimester-- you're right, Pro-Lifers in Alabama would be irate that women in California could still have abortions. They would be horrified that "people" were being "murdered." But unless they're prepared to move to California and influence the political process, there's not much they could do about it. Our tradition does not allow Oregon to influence Virginia laws, if it's a state's right.

I would personally think it was a state's responsibility, because I'm not sure what Constitutional clause would give the federal government the authority to define "personhood." But I'm no legal scholar, so I don't really know how that would work.

What if Georgia writ a law, making it illegal for a woman to leave the state for purposes of having an abortion in New York or any other state which so allowed it?

Again, I'm not a legal scholar, but I'm pretty sure that individual states are not allowed to control the passage of persons across their borders. I'm pretty sure that's a federal power. If Georgia passed such a law, it would almost certainly be struck down.

A state can pass a law banning abortion one year only to change it ten years later as the mood of society changes. That is the beauty, in a sense, of a SCOTUS decision, because some few things; murder, slavery, segregation etc, are sins that Society might tolerate for whatever reason, but lifetime appointed judges would not. Of course, being human, even lifetime appointed judges often rule incorrectly.

Of course, critics would say the downside of that "beauty" is that it removes the discourse from the population and allows the least democratic branch of the government to dictate laws for us. It would be one thing if it were an interpretation of existing law, but it's not-- the Court is inventing rights and powers that should have been established by the will of the people through the legislative branch. But I guess which interpretation you buy into depends on how democratic you think the US should be, how much power should be reserved to the people and how much should be wielded by the elite.

Also, there are societies in Europe where children do drink alcohol, and watch television with programs that could arguably be called "adult films". And it wasn't too long ago that a society in Europe decreed that Jews weren't human.

Again, what happens in Europe is a European affair. It has no bearing on American law whatsoever, and it really has no place in this discussion. You are right, however, that the unelected Courts do rule wrongly all the time-- they protected the institution of slavery, including laws that required Americans to turn in fugitive slaves, for about seventy years. They upheld segregation laws for about another seventy years. Now is it true that the Courts are actually more progressive and less reactionary than the democratic masses? Thomas Dye and Harmon Zeigler, in their excellent book The Irony of Democracy argue precisely that point (hence the title of their book), although their book is highly contested and hardly "settled law."

After all, how far does one take it? Yesterday, it was a fetus, today, it's a person, so I have to pay for two movie tickets? (one at child's price, of course). Yesterday I couldn't drive in the carpool lane, but today I can? Yesterday I could't write my fetus off as a tax dependant, but today I can?

But, as pointed out earlier, these inconsistencies already exist. A man can kill a pregnant woman, for example, and he can be tried for two murders; but if she willingly chooses to abort the fetus, then the law declares that there is no murder. Since a mother does not have the authority to order the death of her born children, then it follows that the fetus is obviously not a "person"-- but if it's not a person, then how can the murderer be held responsible for destroying what was just a part of the first victim's body? (This gets especially tricky when she survives and the fetus does not). The point is that these inconsistencies already exist, so using this as a reason to oppose the will of democracy isn't valid.

I've always felt that the pregnancy/double murder bit was more a political ploy of the Pro Life bunch to wedge the abortion issue than any real desire to punish murderers. But never the less, as it stands, shouldn't movie theatres, amusement parks, any place that sells admission as opposed to seats (such as air planes or buses) be entitled to more money by that same logic? It's a flawed concept.

True democracy in America, on the federal level, is an illusion. I apologize in advance for the following Civics lesson, I am well aware you know all this, but sometimes, to illustrate a point, it helps to repeat.

It seems to boil down to a debate about our democracy. Despite popular belief, our democracy is pluralistic, and not majority ruled. The Senate, the more deliberative body of the Congress, exists where 44 Democratic Senators represent a greater population than the 55 Republican Senators. How is that fair? It isn't.

But it is so, and controlling parties change in time, as they always do. We live in a representative republic and not a true democracy. Even our Executive elections are tallied by electoral vote as opposed to popular vote.

Why is this so? Why did the Founding Fathers make it so? There are arguments that they feared the tyranny of the majority. There are arguments they believed the citizenry wasn't educated enough. There are as many arguments as there are possibilities.

But it simply doesn't change the fact that our government is structured towards an elitism. Toward a slow glacial pace as opposed to a mirror image of the whims of society. Maybe my statements came across sounding elitist, but I was simply trying to illustrate the true nature of our government. I make no moral judgements, I'm not saying it's the right way or the wrong way, it simply is the way.

Everything from high incumbancy rates, to limitless terms for Congressfolk are designed in no small part by them to keep the status quo.

There will be no true change of government to genuinely reflect society until those conditions are changed. And ask yourself, how would government look if it did genuinely reflect society? How many amendments would there be to the Constitution? Look at prohibition as an example of Congress mirroring society, enacted by society and repealed by society. Look at State constitutions. How many amendments does Texas have now? Well over 300...

I, too, am no legal expert, but surely if Georgia defined a fetus as a person, and woman A intended to leave Georgia for the purposes of killing said person/fetus, she could be arrested for attempted murder, no? I ask any who would know to correct me if I'm wrong.

Now, if the Congress took up the issue of what constitutes a "person" that would be an entirely different matter. But truth be told, again the way the Congress is structured, to support the status quo, I can not at any time see any Congress truly taking up the issue.

But lets say they did. We would see a true culture war as Senators/Representatives from states such as California and New York suggest life begins at birth, or at least at the point where the child could survive on its own, and places like Mississippi and Kansas declaring that life begins just after conception. We're still back to the original dilemma and the original deadlock.

Whoever had the majority in the Congress, and a friendly executive would succeed in writing the law as best they could pass, and someone from the losing side would challenge it and...

...again it winds up before SCOTUS. So it seems to me, whether it begins there or not, it will end there.

Which is why control of SCOTUS is of absolute importance to both parties.

Sorry for the ramble.

Stan, different states had different laws on abortion long before Roe. In some places it was legal, in some places it wasn't. It didn't lead to civil war... until the Supreme Court stuck its nose in it.

As to traveling to another state for an abortion, the Constitution protects the right of all persons to travel from one state to another, regardless of the purpose. People cross state lines to take advantage of different laws all the time, for reasons ranging from buying alcohol to marrying a first cousin or a 14 year old.

It would be far a better and safer course for the court just to say Roe was wrong than to suddenly say that a fetus is a person for Constitutional purposes. First, that's not warranted by the history of the 14th Amendment. Second, such a finding would immediately necessarily make abortion illegal as violating the fetus' civil rights under the same 14th Amendment.

As for all this foolishness about HOV lanes and movie admissions and so forth, it just makes all of you sound stupid. It trivializes a serious debate and makes no sense anyway. Besides that, even if it was somehow intellectually inconsistent (which it is not), centrists should never, ever complain about a lack of intellectual consistency. Rigid consistency is the hallmark of the ideologue, the kind of uncompromising politician we're not supposed to like. When you criticize a politician for being uncompromising, and then claim he is being intellectualyl inconsistent when he does compromise, he's going to stop listening to you very quickly.

Someone tried the "fetus is a person in the HOV lane" argument a few months back. She lost in court.

44 Democratic Senators represent a greater population than the 55 Republican Senators. How is that fair? It isn't.

Fair? Now there's a truly subjective term. To expand on civics lessons, the federal government is not a democracy, and never has been. It's a federal republic of the states. From that angle it's completely "fair" for the states to have equal representation, and not "fair" at all for some states to have more Congressional representatives simply because they have higher populations.

Why is this so? Why did the Founding Fathers make it so?

We know why, because they said so. The Senate was to be the body that represented the states to the federal government, and the House was to represent the people. The Senate was to prevent the oppression of smaller-population states by larger ones, to provide for the equality of states. That's why Senators were originally selected by the state legislators, up until the compromise of 1913, whereby the states swapped the direct election of Senators for the power of the feds to impose direct (income) taxes.

Which I still think was a pretty bad deal for the people themselves, one reflecting badly on the dysfunctional level of internal politics at the state level.

Same with the electoral college. The Constitution leaves it entirely up to the states on how to select them, simply matching the number of electors with the number of Congresscritters.

Your state might be a pure representational democracy. The federal govenrment never has been.

Pat-

Charging a pregnant woman double admission is no more illogical than charging a murderer double homicide. They're both illogical, but if the one can follow, why not the second?

Tully-

Ditto. Exactly my point! Our government is designed specifically not to mirror our society, which was what I was going for all along.

In any case, whether the Constitution was designed to express the will of the people or to insulate the political process from the passions of the day (a point I think would describe most of the founders' intent quite well), the government's structure was designed for the Congress to pass laws, the President to execute them, and the Courts to mediate differences between the two, and to ensure that the actions of both were in keeping with the rules established by the Constitution. That was the whole concept of checks and balances. They did build a Congress, with a Senate to represent federal interests and a House of Representatives to represent national interests-- they didn't abrogate law-making responsibility to the judicial branch, and believed that the Senate would be sufficiently insulated to pass the "right" laws. That's actually precisely what I'm arguing-- let's let the branch that was supposed to legislate, legislate! When the Supreme Court legislates from the bench, it subverts the intent of the entire system.

Now I'm not saying it's not within the Supreme Court's Constitutional power to determine whether or not the "penumbra" of the Bills of Rights establishes a Constitutional "right to privacy"-- nor even if the the right to abortion is subsumed under that greater right to privacy (although, tellingly, many Pro-Choice legal scholars, such as The New Republic's Jeffrey Rosen, have long since argued that Roe v. Wade was wrongly decided on the right to privacy, and in fact in Planned Parenthood v. Casey, the plurality opinion backed away from the right to privacy established in Roe and Webster, and argued that that abortion rights were "grounded in the general sense of liberty" under the Fourteenth Amendment). Those are the kind of things that the Supreme Court has done for decades, centuries.

But, having said that, who has the responsibility to determine what is or is not a "person"? Is it the Courts, who interpret the law? Or is it the legislature, who actually establish the laws...? It seems to me it belongs more squarely with the latter rather than fiat declared by the former, based on 18th century concepts that human life didn't began until after birth (a concept, by the way, that only the most extreme of Pro-Choice advocates are willing to agree to). We can now see into the womb, and while most Americans would probably agree that "a mass of cells the size of pinpoint" is not a human life, very few of them would agree that a fetus one day before birth is not a human, either.

So, I guess my question is, if polls suggest that a majority of Americans support a general right to an abortion (perhaps not "abortion on demand" or even "partial birth abortion," but a right nonetheless), then why aren't Pro-Choicers willing to see the issues resolved legislatively through some kind of Freedom of Choice Act? Why continue to hold sacred a flawed judicial opinion that even uber-liberals Lawrence Tribe and Alan Dershowitz disagree with?

By refusing to allow this issue to be decided upon by the popular political process, the Pro-Choicers are actually setting themselves up for failure down the road-- when the day comes that 51 "Right to Life" Senators approve of that fifth "Right to Life" Justice nominated by one "Right to Life" President (perhaps what we're seeing now)... They stand to lose everything because of the activity of a narrow portion of the population that doesn't necesarily reflect the view of the majority on this issue. It may not turn out that way-- I think the Court is far more likely to overturn Roe and send it back to the states than to "discover" a "right to life" for the unborn-- but they're definitely setting themselves up for that fall. So why not let the people resolves this issue?

Bobby, I agree with most of what you say. My point above was only that there's something of a conundrum embedded in trying to take the moral liberty high grounbd by arguing that Roe takes power away from the people as individuals.

I understand all that other stuff about how it works, and about how its supposed to work. I'm not sure if your accusatation of flippancy was directed at me. I understand and respect the deeply-held beliefs of those who oppose abortion . At least when they stick to the rationale of opposing it because fetuses deserve consideration of humans. I do remain unconvinced however that people who believe this are actually much concerned with the constitutional mechanics.

Regarding how it's supposed to work, which you seem a big advocate of, my views are well known, and have a relationship which you can appreciate as being similar to Tully's commonly made point that no battle plan survives engagement.

It's certainly a testament to some combination of the foresight and luck of our founding fathers that our government practices as actually manifested bear as close a resemblance to the original design as they do. And I'm always persuaded by the point that every additional second of its relatively proven efficacy adds force to the argument that the original designs deserve the utmost respect. I only stop short of deifying the constitutionally based rule of American law as being itself the greatest good. IMO, this is ultimately a subordinate good to a more complicated (and admittedly amorphous) ideal which encompasses America and its ongoing struggle to balance equality and liberty while trying to provide safety, predictability, freedom, and opportunity to as many Americans as possible.

I don't think anybody seizes the moral highground on Roe by saying it takes away power from people "as individuals". It takes power away from the people acting collectively and vests it in a branch of government never intended by anybody, prior to the Warren Court, to be the embodiment of the social conscience of the nation.

Further deponent sayeth not, as we've hashed out this conversation plenty before...

Hey, I can name that tune in three notes!

Sorry, Pat, it's just I grew up among people who sang pretty much the same song, although with slightly different lyrics.

"We would have gotten rid of segregation...probably...eventually...we would have voted it down...if that mean, mean, me--ean Supreme Court had just left us alone, just let it work it out by ourselves, and let "the people" vote on it, instead of selfishly deciding it for us, then there would have been no need for those cross burnings and firehoses and bombings and other unplesantness...la la la la."

When I point out that Bush vs. Gore (whose tortured rationale makes Roe look like a masterpiece of legal reasoning) was decided in favor of the candidate that got the fewer votes from "the people" (but had the most friends on the Court) and yet Gore's supporters did not burn, bomb, etc, anything in protest, I get stunned looks, and then a sneer as if "Nah, that just shows you lefties are wimps." *Sigh*

Anyway, these folks learned that tune from their grandparents, who sang the same thing about the Late Unpleasantness and slavery.

At the risk of sounding like my favorite fictional lawyer, Atticus Finch; "Do you really think so?" Do you really think that the Supremes will say "OK, our bad, Roe was a bad decision, now please revert to the 1973 status quo.", then there will be a short, civilized debate in all fifty states, followed by each state passing the laws that best reflect its people, and then the whole messy question will just go away?

Please.

That won't be the end; it will just be the begining. Once Roe is gone, then Griswold will be next. Yes, yes, Griswold is about birth control, not abortion, but some are already crossing the line. Do you really think any right to privacy will be preserved?

Me, I don't see Roe as "forcing" anything on anybody. You had the right to refuse abortion before Roe and you still have the right to refuse abortion after Roe. Of course, since our plumbing a little different, that probably means far less to you than it does to me. ;-)

Whoops. Double posting again. Sorry, guys; too much caffeine.

Jean, I would NOT have said that about segregation. As I have pointed out (at length) to Brian, I believe Plessy v. Ferguson (in which the Supreme Court held that legal segregation was perfectly constitutional) was wrongly decided by an activist court. The plain language of the 14th Amendment, combined with the legislative history and understanding of the 13th, 14th, and 15th Amendments combined, should have made it as clear to the Plessy court that such racial segregation is wrong as it was to the Brown v. Bd. of Education court.

And the elected branches of government did in fact adopt strong anti-discrimination statutes around the same time period, thus proving also that political institutions CAN be successful in writing societal wrongs, even long-entrenched, deeply ingrained societal wrongs.

bk,

I guess my answer would be that because the issue (abortion rights) was resolved through the wrong process-- i.e., by exploiting the power of a small branch of government isolated from the will of the people-- it has the potential to be abused, and may ultimately backfire on freedom of choice. We may see that quite soon when (not if) Alito is confirmed and a new conservative Supreme Court chooses to support an activist agenda in the other direction. If that happens (Alito's confirmation is a when, but what happens next is an if), you can rest assured liberals will be the biggest critics of an activist court that doesn't respect stare decisis or the will of the people-- they wi;; then be wishing that we had all stuck to the "process," but it will be too late. And they will have been partially responsible for unleashing this mess in the first place. (As you can see, I see neither side as being principled in this debate).

Blue Jean,

That won't be the end; it will just be the begining. Once Roe is gone, then Griswold will be next. Yes, yes, Griswold is about birth control, not abortion, but some are already crossing the line. Do you really think any right to privacy will be preserved?

I'll file that comment along with the NRA people that are constantly telling me that if we allow any kind of gun control whatsoever that the government will eventually ban all guns completely. Using that logic, any form of gun control (from waiting periods to mandating safety courses to banning assault rifles) is illegal, unconstitional, and un-American, and must be opposed at all costs. I'm thus expected to oppose things that could do good, because they're convinced that evil is just over the horizon. That's not helpful; it's fear-mongering scare tactics.

And again I would reiterate that if the issue was decided through the legislative process (either a federal act or a Constitutional Amendment), then we wouldn't be relying upon the Court to tell us what our privacy and abortion rights are. They would be enumerated, and Planned Parenthood wouldn't have to live in fear of every next Supreme Court nominee appointed by a Republican President.

Bobby,

Oh sure. It might go that way. It's certainly plausible. Roe is at best a bebop improv over a straight blues chord change, and most people hate bepop.

I don't dispute that Roe can be seen as a usurpation. It's at least arguable, and at least a gray area for SCOTUS to claim such power. I'm not convinced it won't endure, though. I expect we'll arrive at a state where abortion remains legal but subject to the sorts of restrictions that the current day public thinks is reasonable, and that as the relationship between viability and legality changes with technology (when can keep a fetus alive outside the womb and bring it to healthy term), the laws change as well.

I'm just skeptical that the ultimate outcome will be an overturning of Roe any time soon. My prediction is that the pattern will continue wherein Supreme Court justices turn out to be less ideologically conservative than expectations held. My suspicion is that this happens in large part becuase judicial temperment is so strongly affected by the responsibilty to see both sides of every story. People become what they practice.

But if Roe does get overturned, I think we'll fall short of the apocalypse even though I expect we'll see a decided flaring of controversy. My expectation in that case is that after much fury and vitriol is expended, we'll lapse into an exhausted compromise or 50 that largely resemble the current state. That's why I'm not convinced it's worth it.

"Me, I don't see Roe as "forcing" anything on anybody. You had the right to refuse abortion before Roe and you still have the right to refuse abortion after Roe. Of course, since our plumbing a little different, that probably means far less to you than it does to me. ;-)"
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Jean, of course that pre-supposes that what's being aborted doesn't count as "anybody". Which, of course, is the whole nexus of the question at issue. Note, I don't claim the wisdom to personaly know what exactly consitutes an "anybody"....but I believe it is a genuinely reasonable question to pose.

bk,

Actually, I tend to agree with you that the addition of Alito to the Supreme Court isn't likely to alter the balance of power vis a vis Roe, at least not to the extent that conservatives hope and liberals fear.

Assuming that both Alito and Roberts voted to overturn Roe v. Wade that would still only leave Pro-Lifers with 4 reliable votes: Alito, Roberts, Scalia, and Thomas. The Pro-Choicers, meanwhile, can count on Bader Ginsburg, Breyer, Souter, and Stevens to support their cause, more or less, unequivocally.

That puts Justice Kennedy in the crucial pivot. And based on what we know of his previous decisions on abortion-- he upheld Roe in Planned Parenthood v. Casey, albeit while allowing many of the restrictions (24-hour waiting period, informed consent, parental notification) that numerous states have subsequently adopted, but he dissented on Stenberg v. Carhart, where he argued that bans on partial birth abortion were constitutional and in keeping with the Casey test-- the man is somewhere in the middle.

And that was with Roberts automatically voting with the Pro-Life movement, which I think may not necessarily be so (I think, like Kennedy, he's far more likely to weight the legal merits of each particular case and not to have already made up his mind going into the case, a la Thomas or Breyer). Roe is almost certainly safe for now, although we may and probably will see further state restrictions permitted in the Roberts Court.

I think what's confusing people is the 5-4 decision on Casey, where Justice Byron White dissented against the majority (as he did in the original Roe decision, twenty years earlier)-- White was replaced by Bader Ginsburg, and so the 5-4 split more or less became an informal 6-3 split in favor of abortion rights. The irony, of course, is that today's anti-Alito Democrats waxed poetic about how this nomination was different because it threatened to alter the balance of the Court on abortion-- it didn't, and for that matter, when Pro-Choice Bader Ginsburg was nominated to replace Pro-Life White, the Republicans overwhelmingly voted to confirm her.

But the truth is usually the first casualty in our political process, so I suppose I should not have expected anything different...