Editore"s Note
Tilting at Windmills

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January 10, 2006
By: Kevin Drum

ALITO UPDATE....I'm curious. I listened to a few minutes of the Alito hearing this morning and I heard Alito say that he thought Griswold v. Connecticut, the landmark privacy case, was correctly decided. But of course he won't tell us whether he thinks Roe v. Wade was correctly decided. Why not?

Why is it OK to take a firm stand on some decisions but not on others? What's the supposed algorithm here?

Kevin Drum 3:48 PM Permalink | Trackbacks | Comments (88)

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contraception = ok
abortion != ok

Posted by: cleek on January 10, 2006 at 3:52 PM | PERMALINK

What's the supposed algorithm here?

It's the smarmyness algorithm.

Posted by: snark on January 10, 2006 at 3:53 PM | PERMALINK

He'll say whatever his handlers tell him to say. Don't give any "ammunition" to the Dems. Lie lie lie. And the Dems, despite Alito's record of lying, will be "civil." Gotta get invited to Timmah's show and parties!

Posted by: Gore/Obama '08 on January 10, 2006 at 3:56 PM | PERMALINK

Griswold says there is a right to privacy inherent in our Constitution. The underlying principle beyond the Roe decision was that governments cannot simply ignore this right of privacy even if the private act is something that folks like Alito (or even myself) find to be immoral private choices. So if one accepts the logic of Griswold, one has to accept the logic of Roe. Right?

Posted by: progrolib on January 10, 2006 at 3:57 PM | PERMALINK

Kevin:

Even Renquhist, Thomas and Scalia said they thought Griswold was cool.

Judge Bork frontally challenged the penumbral doctrine out of Griswold and he went down in a blaze of glory.

No Republican wants to see the idea of an unenumerated right to privacy in the Bill of Rights go down -- even if every originalist's favorite passtime is mocking the penumbral doctrine.

Bob

Posted by: rmck1 on January 10, 2006 at 4:03 PM | PERMALINK

Consider the parallels with this trial transcript:

Q. Did you ever spend the night with this man in New York?
A. I refuse to answer that question.
Q. Did you ever spend the night with this man in Chicago?
A. I refuse to answer that question.
Q. Did you ever spend the night with this man in Miami?
A. No.

Posted by: Hamilton Lovecraft on January 10, 2006 at 4:04 PM | PERMALINK

Well, Griswold isn't particularly controversial, is it? But Roe is. Therefore, no harm in sharing one's opinion in the former. The latter, though -- it's trouble either way you go.

Posted by: Alek Hidell on January 10, 2006 at 4:05 PM | PERMALINK

Kevin wrote: Why is it OK to take a firm stand on some decisions but not on others? What's the supposed algorithm here?

Kevin, your cutesy pretense that the Bush administration and its various agents have any principles whatsoever, or that there is any standard of consistency, truth, logic or decency behind anything they say or do, is getting old and tired.

It's "OK" to do whatever it takes to get and keep power. That's all that Cheney, Bush et al care about and that's all they do, every day, all day, all year long: get power, get more power, and use it to enrich themselves, their families and their cronies in the military-industrial-petroleum complex.

Alito on the Supreme Court will work to increase and entrench the primacy of corporations over human beings, and ensure that Bush and future Republican presidents acting as the paid agents of corporations will have unlimited, unchecked power to use the federal government to enrich and empower the neo-fascist corporate-fedualist aristocracy that rules America. That's why he was nominated. And that's why the Bush machine wants to keep everyone preoccupied with abortion and Roe v. Wade.

Posted by: SecularAnimist on January 10, 2006 at 4:06 PM | PERMALINK

The simple answer is this: Alito is already on record as having once opined that Roe was not correctly decided. If he now says it was correctly decided, he will be skewered for inconsistencey, political opportunism, etc. If he says it was not correctly decided, all hell will break loose, and he will be sunk. So he chooses silence.

Democrats on the committee should all take the opportunity of their questionin times to make statements like: "well, of course we know that you are already on record as saying that Roe was not correctly decided, and that there is no constitutionally protected right to an abortion" and see if they can goad him into further elaboration and contradiction. If he just sits there and lets these comments pass, he will allow the impression to be reinforced that his current views are identical to his former views. If he decides to engage them, he can be tied up in knots.

Posted by: Dan Kervick on January 10, 2006 at 4:07 PM | PERMALINK

I believe Roberts' explanation was that contraception wouldn't come before the Court again but abortion would.

Posted by: Nathan on January 10, 2006 at 4:07 PM | PERMALINK

It's improper to ask a judge about his/her stand on Roe v. Wade because the Republicans say so, and have said so so many times that they've sold both the press and Senate Democrats on the idea.

The Republican base dearly wants to overturn Roe, but most of the public opposes it. Therefore the Republican strategy is to try to put one over on the larger public.

Posted by: Joe Buck on January 10, 2006 at 4:08 PM | PERMALINK

Ah, Kevin, you know why. He can't admit to being against Roe v. Wade. No one really remembers Griswold or cares all that much.

Posted by: catherineD on January 10, 2006 at 4:10 PM | PERMALINK

I'm hearing a lot of hand-wringing on the left over this. Please stop acting stupid. We all know Alito's an anti-choice, anti-privacy, pro-executive-power, pro-corporate ringer.

We all know damn well that these positions are not going to come out with the spotlight on (because Conservatives have to lie to get into office), and we all know damn well that the DLC and the RNC will rubber stamp him into office, and no amount of hand wringing will stop it.

We lost this one. Get over it. We're lucky we're not stuck with Harriet Miers - but not *that* lucky. Move on. Start thinking of how we're going to win back congress in '06 to try to set things right.

Posted by: Osama_Been_Forgotten on January 10, 2006 at 4:11 PM | PERMALINK

Remember "Put a Cork in Bork" Well, its time now to put "A Lid on Alito: King George's Judge"

Posted by: US PERSON on January 10, 2006 at 4:21 PM | PERMALINK

Nathan: I believe Roberts' explanation was that contraception wouldn't come before the Court again but abortion would.

And for that intellectually dishonest and specious assessment alone he should be rejected.

Posted by: Advocate for God on January 10, 2006 at 4:21 PM | PERMALINK

'Why is it OK to take a firm stand on some decisions but not on others? What's the supposed algorithm here?""

The LAW is what Judge Alito will and can address in thes hearigns. Not six-dollar words like 'algorithm": Back to the square one for you.

------------------

"Put that in your pipe and smoke it, LIBERALS. No, I dont mean CRACK :-( - GastroGuy269

Posted by: GastroGuy269 on January 10, 2006 at 4:23 PM | PERMALINK

I may regret writing this, but Roe v Wade is a really tortured piece of reasoning. And I write this as a feminist and as someone who believes that women need control over their reproductive lives -- ie someone who is pro-choice. Even if you buy that the decision to have an abortion is an extension of a privacy right, Roe qualifies that right by conditions of the viability of the fetus. And with developments in reproductive technology, the viability time is shifting closer and closer to conception.
To my mind, abortion and reproductive freedom is really a question of equality rights -- not having one's choices in life tied to one's reproductive situations. Of course, going that route would entail all sorts of things, like equal work for equal pay, and a federally funded child care scheme.
I would really love to hear a senator ask Alito just why he thinks Roe was wrongly decided. I wonder what he would say.

Posted by: LisainVan on January 10, 2006 at 4:27 PM | PERMALINK

Although the ultra-conservative religious/political faction would like to prohibit birth control and abortion, they know even mainstream bible belters will not support a ban on widely used contraceptives.

Posted by: Powerpuff on January 10, 2006 at 4:28 PM | PERMALINK

CatherineD:

Griswold is a more foundational decision than Roe. It established the "penumbral doctrine" -- the idea that you can read a right of privacy out of the sense of the entire Bill of Rights in its overall context, even if there's no explicit right of privacy in them.

It's something that small-government conservatives support as strongly as civil libertarians.

The reason why it *is* an interesting issue (why ask Griswold, why not Roe?) is because the reasoning conservatives use to trash Roe as "poorly decided" would apply equally to Griswold -- because it applies to trashing the penumbral doctrine, something which strict constructions abhor beause they think it put words in the Constitution's mouth the Framers didn't intend.

Yet only the most doctrinnare of conservatives will frontally challenge Griswold. Why? Because take that down, and you take down privacy rights altogether.

Only Robert Bork was ideological enough to challenge the penumbral doctrine head on in his confirmation hearings. He was, as we all know, slaughtered for it.

Thomas, Scalia and even Renquhist made nice plattitudinous noises in its favor when asked about Griswold during their confirmations.

Bob

Posted by: rmck1 on January 10, 2006 at 4:31 PM | PERMALINK

I might have heard wrong, but didn't he say he "agreed with the result?" That's not the same thing as saying you think it's correctly decided.

Posted by: dhr on January 10, 2006 at 4:31 PM | PERMALINK

LisaInVan:

I totally agree that abortion would have been put on much more solid ground if it was argued on a different fundamental basis than privacy rights.

My candidate would be equal protection under the law in the 14th Amendment.

Bob

Posted by: rmck1 on January 10, 2006 at 4:35 PM | PERMALINK

Gawd, I hope this is a rhetorical question, Kevin.

It's obvious that a guy like Alito COULD NOT and WOULD NOT be confirmed if he were to come out and say Roe was wrongly decided.

They (the activist-right) cannot get their guys in the positions they want them in by being honest about this.

Posted by: GMF on January 10, 2006 at 4:45 PM | PERMALINK

I remember Griswold. I loved "Christmas Vacation."

Posted by: ckelly on January 10, 2006 at 4:46 PM | PERMALINK

Oh goody, a new uneducated wingnut to play with.

In addition to being astoundingly illiterate, GastroGuy's comment doesn't make a damn bit of sense. Oh, Alito's going to address the LAW and not some six-dollar word like algorithm. Damn right! Only liberals would try to make Bush's nominee solve some college-level math equation to get on the court, when all he wants to do is consider the LAW!

Posted by: Alek Hidell on January 10, 2006 at 4:49 PM | PERMALINK

It's obvious that a guy like Alito COULD NOT and WOULD NOT be confirmed if he were to come out and say Roe was wrongly decided.

Says who? The Democratic minority?

*SCOFF*

Posted by: Osama_Been_Forgotten on January 10, 2006 at 4:54 PM | PERMALINK

Are conservatives dimwitted enough to believe that if they actually made abortion illegal that all abortions would stop? It's worked so well with alcohol and drugs hasn't it? All attempts to legislate immorality have been so effective over history. Why don't conservatives study history?

Posted by: MRB on January 10, 2006 at 5:02 PM | PERMALINK

Didn't he say about his 1985 job ap that "sometimes you say what you have to say to get the job?"

My question: Why has no one flat-out asked him if he is doing the same thing now?

Posted by: Shameless hussy on January 10, 2006 at 5:05 PM | PERMALINK

Oh, Kevin. Don't be so naive. Don't you know the rules of American politics yet?

A brief primer:

- If you are a Republican, you can prevaricate, dissemble and generally lie your ass off about anything and everything, and there will be no consequences.

- If you are a Democrat, anything you say will be twisted and used against you. One lie - even about your sex life or your golf game - and you get impeached.

Got it?

Posted by: Stephen Kriz on January 10, 2006 at 5:08 PM | PERMALINK

That was me. Shameless was on this computer last. We work in the same place and I'm here because a year ago she left this site up in the Blood Bank when we changed shifts. (Now you have two smart-ass red-heads to deal with.)

Posted by: Global Citizen on January 10, 2006 at 5:08 PM | PERMALINK

I think you could be a supporter of Griswold and still not support Roe v. Wade.

Griswold established a right of privacy. What Roe did was draw a line where that right to privacy hits the state's right to protect life.

Obviously, the right to privacy is not absolute. You can't kill a fully grown person in the privacy of your home. The question is, where is the line? Hence, you can agree with the right to privacy but disagree with how Roe established it, as many reasonable people do.

Posted by: Alex Parker on January 10, 2006 at 5:22 PM | PERMALINK

I would like someone to ask Judge Alito if the government has the power to force women NOT to have abortions does it not also have the power to force women to have abortions. Logic cuts both ways. The government can control women's reproduction ability or it cannot. Hopefully, there is privacy protection in the constitution, as Griswold demonstrated, preventing the government from controlling reproduction.

Posted by: Hostile on January 10, 2006 at 5:26 PM | PERMALINK

The obvious answer to Kevin's question is that if you oppose the right to contraception, you look like a total wingnut. If you oppose the right to abortion, you don't, because opposition to abortion is considered a "mainstream" (if right-wing) position in this country.

That gets me to one of my great frustrations with American politics-- the truth is that most pro-life activists DO oppose contraception, because of either religious reasons or because they think that contraceptives caused a decline in sexual morality and/or that it does some good to make pregnancy a consequence for casual sex. They won't admit it, of course, unless they are forced to. But the opposition to contraception is there-- you can see it in right wing positions on the morning after pill, international family planning programs, sex education, condom distribution, and even the conservative critiques of Griswold itself. Democrats ought to play this up and force conservatives to take sides on contraception-- they will either have to piss off their base or piss off the rest of the country.

I should note that the Roberts excuse that Griswold will never come back before the court doesn't really hold water. Governments are doing things to restrict contraceptive distribution-- these laws permitting pharmacists not to prescribe them are the latest example. I could certainly see someone challenging these sorts of efforts as a violation of the Griswold privacy right (or the closely related Eisenstadt v. Baird equal protection right).

Posted by: Dilan Esper on January 10, 2006 at 5:27 PM | PERMALINK

Alex Parker:

Well sure. What I've been trying to draw attention to in this thread (and failing) is that the strict constructionists who fume about Roe being badly decided should be applying the identical argument to strafing Griswold.

What the hell is a penumbra? Among other things, it's a bogeyman par excellance for conservative legal scholars worried about justices making up constitutional rights out of whole cloth.

But just like Roe, and to a much lesser degree, it gains nothing to attack that position in a judicial hearing. You're absolutely correct that more people support privacy rights (many of them on the hard right) than they do Roe.

But if the strict constrictionists had a modicum of consistency (which they don't when confronted in the political realm), they'd be beating the bushes looking for a way to overturn Griswold.

In truth, we need a constitutional amendment to establish an unambiguous right to privacy.

Bob

Posted by: rmck1 on January 10, 2006 at 5:31 PM | PERMALINK

so, global citizen, what you doing later?

Posted by: elfranko on January 10, 2006 at 5:32 PM | PERMALINK

'Algorithm'?

Kevin now has liking for Arab culture and language?

Posted by: nut on January 10, 2006 at 5:33 PM | PERMALINK
In truth, we need a constitutional amendment to establish an unambiguous right to privacy.

This is 100% correct, and something Democrats should have been pushing in response to Republican complaints about Roe and abortion from the beginning. Instead, we tauted the dodge of safe, legal, and rare.

Posted by: SavageView on January 10, 2006 at 5:37 PM | PERMALINK

Anyone else find Tom Coburn completely ridiculus (from yesterday)? (Remember he was the guy who cried during the Roberts hearing and was then caught doing the crossword puzzle.)

His "logic" seems to be if the absense of a heartbeat and brainwaves means that there is no "life", then the presence of such "logically" means "life". I can buy the first part since a heartbeat and brainwaves are probably a necessary condition for "life". But that doesn't mean it's a sufficient condition for "life". First year logic teaches as much and he should be pretty damn embarrased for not understanding logic and constantly trying to peddle it.

(P --> Q) |- (-Q --> -P) (Modus Tollens)

But Q does not imply P. Anyone with an MD should know that you can't affirm the consequent. I'd like to hear a reporter mention this obvious logical fallacy. He tries to use the false logic to attempt to "prove" how skizophrenic our nation is. Um, sorry. He just needs to go back to high school and brush up on logic.

Posted by: gq on January 10, 2006 at 5:39 PM | PERMALINK

Playing with the grandkid, elfranko. Shameless is the single one. But as Kitty Forman said to Fez and Kelso: "Thank you. It made my day."

Posted by: Global Citizen on January 10, 2006 at 5:41 PM | PERMALINK

GC (and SH):

Redheads are wonderful things :)

Bob

Posted by: rmck1 on January 10, 2006 at 5:50 PM | PERMALINK

Sorry I haven't read comments up thread. The justification is that G Vs C is not likely to be contested in a case before the court, so Alito is not prejudging a case by saying he agrees with it. R vs W will, of course, be contested. Alito's official position is that he can't say how he would judge, since then he would have to recuse himself for pre-judging.

Of course, the real reason is that Alito wants to overturn Roe Vs Wade, but if he admitted this opposition to his nomination would increase.

Posted by: Robert Waldmann on January 10, 2006 at 5:53 PM | PERMALINK

ok, back to gq's contrapositives (btw, you have shameless's number, gc?)

Posted by: elfranko on January 10, 2006 at 5:55 PM | PERMALINK

Kevin is a bit of a dunce on this one. The difference is the Roe decision will certainly be back before the court while the Griswold decsion will not.

The Roe debate is a fascinating mix of politics and law. It is virtually undisputed that Roe reflects a very weak effort at interpreting the constitution, and, instead, was a legislative type pronouncement/power grab by group of well intentioned by largely clueless old men (Blackmun wanted to issue a press release on the day the ruling was handed down that apparently disavowed that it was creating a constitutional right to abortion on demand -- I think Burger's concurrence actually stated that). Blackmun, Douglous, Brennan and Marshall sent memos back and forth debating (without constitutional analysis) whether they should majestically set the magic line at 3 months or 6 months.

So a political issue is disguised as a legal one and for 30 plus years left wingers pretend that it should be a legal issue as they mount a furious political effort to preserve it. Republicans mount an analogous political effort to reverse it. The whole thing is theater of the absurd. Roe should be reversed and the issue decided in the political arena of the state and federal legislatures, where it belongs.

Posted by: brian on January 10, 2006 at 5:59 PM | PERMALINK

"Nathan: I believe Roberts' explanation was that contraception wouldn't come before the Court again but abortion would.

And for that intellectually dishonest and specious assessment alone he should be rejected.

Posted by: Advocate for God"

Does the fact that the statement is true affect your comment ?

No, of course not.

So far it sounds like Alito is wiping the floor with Democrats.

Is Teddy Kennedy really writing a book titled "Splash"?

Posted by: Mike K on January 10, 2006 at 6:00 PM | PERMALINK

Maybe LisainVan and I should collaborate on writing a new legal brief to argue that governments overstep their authority when they try to impose the legislature's will over a woman's right to choose. She can take a crack at the 14th Amendment angle, while I try to rewrite the Griswold privacy argument the Court played around with. The old Bill Buckley saw that Roe was tortured logic does not necessarily mean that governments can impose their will on private decisions.

Posted by: progrolib on January 10, 2006 at 6:10 PM | PERMALINK

When SH and I are at work together, it gets raucous. I'm the wife of a retired major and daughter of a retired Chief Petty Officer, and she was in the Army during Desert Shield/Desert Storm. People who never served keep their traps shut around us and don't pimp this war or King George, especially when there are two of us.

Posted by: Global Citizen on January 10, 2006 at 6:12 PM | PERMALINK

OMG! Anti-Alito Apparel!?

Does anyone know anything about the people behind the Bork Alito t-shirts? I saw a kid a Tully's who had one on, but he couldn't tell me where he got it, I mean, he didn't even know what it meant! He said his boss bought one for everyone on the floor, on the condition they wear it out sometime during the week, but he didn't know why. I think this would be so effective in at least raising public awareness of the Bork-Alito connection, and time's running out! I know you can order the shirts at Goodstorm.com, but if anyone is affiliated with the group (Left Ink, I think?), please email me at Darth_Latte@yahoo.com.

Posted by: Darth Latte on January 10, 2006 at 6:31 PM | PERMALINK

He will get in.
Never have Americans been so darned brainwashed.
Most sit on there rupps and remain clueless.
Diehard repubs spin everything into golden
rule.

we have all simply become to lazy to question
what is going on around us.

Posted by: Honey P on January 10, 2006 at 6:35 PM | PERMALINK
....I'm curious. I listened to a few minutes of the Alito hearing this morning and I heard Alito say that he thought Griswold v. Connecticut, the landmark privacy case, was correctly decided. But of course he won't tell us whether he thinks Roe v. Wade was correctly decided. Why not?

Because Roe is more publicly controversial, and making comments on either side might encourage people to vote against him, and he wants the job.

Griswold is less publicly controversial, and therefore safe to comment on the way he has.

Posted by: cmdicely on January 10, 2006 at 6:38 PM | PERMALINK

Now you have two smart-ass red-heads to deal with

I should be so lucky. :)

Posted by: Gregory on January 10, 2006 at 6:39 PM | PERMALINK

Gosh, I would love to hang out and be flattered all night, but my shift is over, so to quote Eric Cartman, "Screw you guys, I'm going home."

Posted by: Global Citizen on January 10, 2006 at 6:43 PM | PERMALINK

Seriously, I will catch you all tomorrow. Unless I get home and have new hardware to install, that is...

Have a good night, everyone, and play nice :)

Posted by: Global Citizen on January 10, 2006 at 6:45 PM | PERMALINK
The justification is that G Vs C is not likely to be contested in a case before the court, so Alito is not prejudging a case by saying he agrees with it.

Which is, of course, complete nonsense. First, contraception may well come before the Court again, by suggesting it was he is either psychically predicting that no state will take action restricting contraception in any way, or he is psychically predicting that no four members of the Court will vote to grant cert if a case challenge such action occurs.

Second, and more importantly, because commenting on whether Roe, on the facts presented, was decided correctly does not prejudge (improperly or not) any particular future controversy, though it might (and quite properly so) provide insight into Alito's understanding of the law.

The idea that anyone could be hired for any significant job involving independent judgement and discretion without answering questions about how they would perform the duties of the job in situations that have faced incumbents in the position in the past, or might speculatively occur in the future, is ludicrous.

The idea, advanced by some, that this is not merely tolerable, but actually ethically required, of federal judges is even more ludicrous, and if the Senate had, collectively, even an approximation of a sense of responsibility, they wouldn't stand for it, and reject without further consideration nominees who refused to answer such questions.

A judge should not -- must not -- prejudge a particular actual justiciable controversy (in the sense that "controversy" is used in Article III) that is pending in the courts below, or which may arise. That does not mean that a judge or judicial nominee may not speak to his understanding of the law, even in a controversial field, nor does it mean that the Senate cannot, or should not, demand that a nominee do so.

Posted by: cmdicely on January 10, 2006 at 6:51 PM | PERMALINK
It is virtually undisputed that Roe reflects a very weak effort at interpreting the constitution,

While I personally believe that Roe was poorly reasoned, the statement that this is "virtually undisputed" is completely false. It is rather hotly disputed.

Posted by: cmdicely on January 10, 2006 at 6:53 PM | PERMALINK

Lots of ways that one could approve of Griswold and not Roe.

1. Griswold involved a married couple. These people got their right to privacy upon marriage. Therefore, women have no inherent right to privacy as independent adults, they have it only through their participation in the institution of marriage. Therefore, while married COUPLES have a right to choose, women as independent agents do not.

2. Griswold didn't involve a fetus. If a fetus is alive from the moment of conception (which he'd have to overthrow all kinds of other statutes to state, but whatever), it trumps the privacy right if the state so decrees.

3. People who use contraception have a right to privacy, but people who are pregnant do not. While I think this is the argument that most accurately represents Alito's views, I think it is also the weakest one, becuase I think it per se violates the equal protection clause, since there appears to be no rationale to this position other than the fact that men use contracpetion but men don't get pregnant. Although, huh, that's also an argument against a discriminatory law like abortion that applies only to women, especially in the context of a law that allows contraception...

Posted by: theorajones on January 10, 2006 at 6:58 PM | PERMALINK

The Religious Right has made it clear that, after Roe is reversed, they're going after Griswold.

And that would be a huge stinkbomb for the GOP. If most Americans support legal abortion - and they do - then even more support legal birth control.

If Alito gave any sign of thinking Griswold is reversible, he'd not only kiss his chances of confirmation goodbye, he'd bring up an item on the Right's agenda that it really, really doesn't want open for general public view.

Posted by: CaseyL on January 10, 2006 at 7:08 PM | PERMALINK

I meant that the poor reasoning of Roe was virtually undisputed among honest people (liberal and conservative) with legal training -- many liberals like the result, but very few support the constitutional reasoning.

I realize politically the reasoning of Roe is hotly disputed and particularly among partisans without legal training or without the integrity to be honest (i.e., democrat politicians). Did you guys know democrats like Ted Kennedy and Hubert Humphrey spoke against Roe when it was first decided? That helps to show that it has become almost entirely a political issue.

It is interesting, and it was not really predictable, that the pro-abortion rights crowd has totally captured the democrat party.

Actually, it also was not easily predictable that the anti-abortion crowd would achieve such power in the republican party.

Posted by: brian on January 10, 2006 at 7:12 PM | PERMALINK

So if one accepts the logic of Griswold, one has to accept the logic of Roe. Right?

i think it is possible to make a good argument that the right to privacy doesn't guarantee a right to an abortion. that said, i think that there are better arguments other than the right to privacy that solidly support the right to an abortion.

Posted by: spacebaby on January 10, 2006 at 7:28 PM | PERMALINK
I meant that the poor reasoning of Roe was virtually undisputed among honest people (liberal and conservative) with legal training -- many liberals like the result, but very few support the constitutional reasoning.

And that's still wrong.

Posted by: cmdicely on January 10, 2006 at 7:33 PM | PERMALINK

'Algorithm'?

Kevin now has liking for Arab culture and language?

algorithm is a greek word.

Posted by: spacebaby on January 10, 2006 at 7:35 PM | PERMALINK

oops. not a greek word. my bad.

Posted by: spacebaby on January 10, 2006 at 7:41 PM | PERMALINK

The Religious Right has made it clear that, after Roe is reversed, they're going after Griswold.

I suggest they're more likely to go after Eisenstadt v. Baird. Griswold affirmed the privacy right of married couples to contraception, Eisenstadt extended the right to unmarried couples. I can easily imagine the Religious wrong salivating over the prospect of denying contraception to those immoral unmarried women who have sex, but not to those upright moral married women doing their "wifely duty."

Posted by: KarenJG on January 10, 2006 at 7:48 PM | PERMALINK

Every once in a while, a thread like this comes up and I re-read Roe. I've now re-read it about five or so times since law school, and although any con-law opinion provides lots of debating points, I too fail to see the "obvious" flaw in its reasoning.

The question, of course, is not whether the United States constitution does or does not mention abortion or pregnancy. Roe seems to be even a clearer basic case than Griswold, in that the use of contraceptives arguably is less "private" than the state of being pregnant.

For a pregnant woman, its kind of obvious that not only does she have a right to not have the state interfere with her own body, but that such right is rather clearly in the constituion, in that forcing a woman to take a pregnancy to term against her will is clearly a seizure.

Every time this comes up, the anti-abortion position focuses, as perhaps it logically should, on the rights of the unborn cells, zygote, fetus, etc.. This is logical because if, say, a zygote has a right to let nature run its course, perhaps that right trumps the woman's rights.

I don't know if anyone has yet asked Alito when he believes constitutional rights attach (at live birth? at conception?, at eggdom? at spermdom?) but perhaps they should. The legal arguments flow from this assumption.

The fact that Roe court engaged in the analysis necessary to figure out WHEN the state's interest in protecting unborn life attached has always struck me as necessary. The only two positions for which it would not be necessary would be that (i) constitutional personhood begins at conception, or (ii) the state has not rights or interests in "the unborn" until they are actually born alive.

Posted by: hank on January 10, 2006 at 7:53 PM | PERMALINK

Was it just me or did I hear Alito answering to Senator Feingold's questions about Presidential powers & duties vs. civil rights to the effect that, 'The president has to decide which laws to enforce'?

Is there a transcript available?

Why was he so unclear about whether he put Vanguard on his recusal list or whether he may have taken it off the list?

Was Senator Sessions really defending the position (on behalf of Judge Alito) that it's a great idea to strip-search 10 year olds?

Why is it (apparently) true that a person's prior record, including reputation, dropped charges and 'not guilty' verdicts are applicable to sentencing in all future cases?

Who will challenge the Bush doctrine of "Don't annoy me via the Internet."?

Is our judges not educated to the law?

Posted by: MarkH on January 10, 2006 at 8:17 PM | PERMALINK

One of the great weaknesses of Roe is that it reads more like a history of medicine and regulation of doctor case than a case premised on the constitution. Read the conclusion below and see how it focuses primarily and remarkably upon the doctor and the doctor's medical judgment -- not upon the constitution or not even the mother or her privacy right (it also is very weak on dealng with the existence of and respect for the privacy right of the baby -- it is very hard intellectually to premise an abortion right on the mother's "privacy" and rationally deal with the reality of the baby):

FROM COURT DECISION:

To summarize and to repeat:


1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.


(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.


(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.


(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.


2. The State may define the term "physician," as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.


In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together. 67

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.

Posted by: brian on January 10, 2006 at 8:31 PM | PERMALINK

Kevin,
Those types of questions just provide aid and comfort to the terrorist.

Posted by: littlejungle on January 10, 2006 at 8:36 PM | PERMALINK

This is the operative paragraph from what now read like an idiotic concurrence by Burger, but which I think Blackmun bascially agreed with in his focus on doctors and medical judgment (although I have not read the press release he had wanted to distribute that day):

"I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand."

Posted by: brian on January 10, 2006 at 8:39 PM | PERMALINK

I believe its logarithm the nut was thinking of. The root of the word is the name of the Arab mathmetician that came up with the concept of 0 in the 900's (can't believe it took that long!)

Posted by: Dismayed Liberal on January 10, 2006 at 8:45 PM | PERMALINK

I think Roe v Wade should be overturned. Not for the obvious reasonsadvanced by a number of liberalsthat it's very poor law and that it is an issue that should be decided by the states. I've long been sympathetic to this view, reasoning that putting the issue back to the states would really provide the litmus test for a lot of blowhard politicians in certain non-blue states. About time people paid a little more attention to the racist and misogynist good ole' boys running their states.

But the real reason I'd like to see Roe v Wade overturned is because it's the women of Americamany of whom would never ordinarily vote for these Republican cretinsincluding the chief cretinwho decided the last presidential election. Because they were frightened of those bad old terrorists. And Mr. Bush gave them a sense of security. They didn't care about individual rights. They were scared. Now they've got their man in office. And now they're upset because he nominates a guy just like him to the Supreme Court.

I put Alito's nomination in the just desserts department. I doubt President Kerry would have nominated someone like him.

Posted by: Nixon Did It on January 10, 2006 at 8:57 PM | PERMALINK

I could not find the actual Blackmun proposed press release, but here is a description of it and, if accurate, it reflects that Blackmun did not know what he was doing:

Blackmun proposed to issue a news release to accompany the decision, issued Jan. 22, 1973. "I fear what the headlines may be," he wrote in a memo. His statement, never issued, emphasized that the court was not giving women "an absolute right to abortion," nor was it saying that the "Constitution compels abortion on demand."

Posted by: brian on January 10, 2006 at 9:06 PM | PERMALINK

I put Alito's nomination in the just desserts department. I doubt President Kerry would have nominated someone like him.

Posted by: Nixon Did It

It is what happens when you lose elections. A conservative president nominates a highly qualified conservative judge. That will be virtually impossible to defeat.

SCOTUS was the big prize for a lot of conservatives. It still amazes me that you lefties did not make a bigger issue out of SCOTUS since it was obvious that Bush was going to get to pick two of them. I also think he will get the opportunity to replace a third justice.

Your right that doufus Kerry would nominate some wild-eyed lefty. Fortunately for the country he will never get that chance.

Posted by: Fat White Guy on January 10, 2006 at 9:17 PM | PERMALINK

Fat,

Amen.

Posted by: berlins on January 10, 2006 at 10:07 PM | PERMALINK

Geez, the trolls around here are rather thick, aren't they.

Posted by: TomB on January 10, 2006 at 10:16 PM | PERMALINK

"These people got their right to privacy upon marriage. Therefore, women have no inherent right to privacy as independent adults, they have it only through their participation in the institution of marriage. Therefore, while married COUPLES have a right to choose, women as independent agents do not."

Stupidest comment of the thread.

What *part* of this makes sense? Or is it just a parody, and I missed it?

Posted by: Joel on January 10, 2006 at 10:55 PM | PERMALINK

You missed it. theora was demonstrating how these arguments might take shape, not vouching for their solidity.

Posted by: shortstop on January 10, 2006 at 11:05 PM | PERMALINK

A stray comment caught some posters of-guard here.

From Wikipedia:

The word algorithm comes from the name of the 9th century Persian mathematician Abu Abdullah Muhammad bin Musa al-Khwarizmi. The word algorism originally referred only to the rules of performing arithmetic using Hindu-Arabic numerals but evolved via European Latin translation of al-Khwarizmi's name into algorithm by the 18th century. The word evolved to include all definite procedures for solving problems or performing tasks.

One more thing. Zero was invented by mathematicians in India. The joke is that the contribution of Indian matematicians is zero.

Posted by: nut on January 11, 2006 at 12:28 AM | PERMALINK

I think Roe v Wade should be overturned....reasoning that putting the issue back to the states would really provide the litmus test for a lot of blowhard politicians in certain non-blue states. About time people paid a little more attention to the racist and misogynist good ole' boys running their states.

Nixon Did It, this is a dumb idea that ought to be thrown back in the water. It's sort of like a Redskins fan watching a close game against the Cowboys, with the 'Skins holding on to an early lead that's now been whittled down to 6 points but still playing defensive ball, saying he hopes the Cowboys will score a touchdown and take the lead; it'll wake those lethargic Redskins up and force them to play aggressive offense.

This is a winner-take-all game; it's us against them. There is no magic balance that decrees that if they win in the courts, we will recoup the losses in the electorate. The more they win in the courts, the more they ALSO win in the electorate.

Fight to the death over every inch of territory. Give them nothing.

Posted by: brooksfoe on January 11, 2006 at 12:34 AM | PERMALINK

For more on Alitos key rulings, judicial history, Reagan-era documents, an interactive chart of his decisons, confirmation hearing transcripts and other essential materials, see:

"The Alito Files."

Posted by: AvengingAngel on January 11, 2006 at 1:23 AM | PERMALINK

alito has no problem with the right to privacy, but that only gets you to first base. all cases then proceed to second base where the court balances the state's right to regulate in a certain area vs. the person's right to privacy. alito is going to favor the the state's over the individual's right. his criminal law opinions demonstrate this likelihood.

Posted by: paperpusher on January 11, 2006 at 9:32 AM | PERMALINK

Well, some of us, HATCH NOT INCLUDED, realize that if he says anything at all that might disappoint the wingnuts in the evangelical world he'll be TOAST!!! So he won't even answer Schumer's question about whether he still believes what he said about abortion NOT being constitutional! A simple question, but of course a trap, cause if he says it isn't there is PROOF of his leaning despite disclaimers that he would use "the rule of law" and if he says it IS...he's totally screwed. Obviously he prefers that WE be! I'd love nothing more than to be able to believe he would be an honest jurist who considers all the information and precedents before coming to his decisions...that would be loverly on oh, so many levels...but I DON'T!!!

Posted by: Dancer on January 11, 2006 at 10:35 AM | PERMALINK

You call "kissing up to Chimpy" an algorithm?

Posted by: Scorpio on January 11, 2006 at 11:23 AM | PERMALINK

"and that there is no constitutionally protected right to an abortion"

I've got my constitution right here. Now can somebody direct me to the "Right to an abortion" the liberals think there is?

Note: I personaly am ok with abortion. I would rather not see it used as a method of birth control but in cases of rape, incest, or where the life of the mother is in jeopardy it should be quite legal.
I'm just wondering, now that the question has been posed again as to the constitutionality of abortion.

Posted by: Lurker42 on January 11, 2006 at 12:05 PM | PERMALINK

Lurker42:

Google the penumbral doctrine.

Bob

Posted by: rmck1 on January 11, 2006 at 1:02 PM | PERMALINK

Ok, I know. Thats what I figured. Thank you.

Posted by: Lurker42 on January 11, 2006 at 1:58 PM | PERMALINK

Bob--

You misread me. I'm not talking about my own thoughts on Griswold, I'm talking about whether his stance on Griswold would divide a public who doesn't remember it. The TV audience isn't going to start mobilizing for and against him based on his answer to that question, which is not the case for Roe v. Wade.

LisainVan --

I don't like the opinion either. I did wonder from his wording whether to take it he didn't agree with the opinion's reasoning or with the result. (Though for him, probably both.) If, in my dreams, I were writing the opinion, I would base it on a right to property in oneself. Much more basic than a right to land property, since our property in our own bodies is inalienable and cannot be sold or accumulated by others. (Our labor is still not the same --- we can't sell our bodies to be lived in by others.)

From this, I would go on to say that no one should be required to house someone else on their property. We are allowed to evict unwanted guests.

Which gives us an interesting codicil. If a bum wanders into your house during a snowstorm, you may evict him, but the government may require that you evict him someplace where he should still be able to live --- like a city shelter.

Likewise, if the government should ever decide it had an interest in bringing evicted fetuses to term, it could require that abortions be performed in an environment where the fetus could be transferred to some form of life support. Evicting a fetus does not give a person the right to see it dead. A person doesn't own that fetus, even if your own genetic material is part of what has gone into it. Just as we don't own our children.

For me, this solves the moral dilemmas I have, and takes care of the logical difficulties I have with the reasoning that a fetus is something so distinctly different from a person.

Posted by: catherineD on January 11, 2006 at 3:42 PM | PERMALINK

CatherineD:

Huh?

That's the same reason the government could use to illegalize abortion.

If a woman chooses to "evict" a first-trimester blastocyst, the only thing it could survive in is a petri dish -- if that. Who is going to pay for all those incubators?

I still say that the way to frame it is to rest it on the concept of legal personhood.

Bob

Posted by: rmck1 on January 11, 2006 at 6:40 PM | PERMALINK

CatherineD,

For me, this solves the moral dilemmas I have, and takes care of the logical difficulties I have with the reasoning that a fetus is something so distinctly different from a person.

Your reasoning does resolve the moral dilemma (and I happen to agree with it, FWIW). However, as Bob points out, it does not resovle the legal or policy dilemma.

Posted by: Edo on January 11, 2006 at 7:12 PM | PERMALINK

pregnancy a consequence for casual sex. They won't admit it, of course, unless they are forced to. But the opposition to contraception is there.
Well sure. What I've been trying to draw attention to in this thread (and failing) is that the strict constructionists who fume.

Posted by: jim on January 12, 2006 at 4:12 AM | PERMALINK




 

 

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