To clarify

Start with a couple quotes from Casey:

It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.

[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability, whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.

This second one is O'Connor's statement of stare decisis. This is the 'precedent bias' I meant in my last post: there is a bias in favor of established precedent. If the composition of the court changes, this will be a large conceptual hurdle that will have to be overcome if a majority intends to overturn Roe and Casey.

So, I think they would have to find problems and rewrite the issue a few different times in order to show that the holding in Roe lacks practical workability, etc.

Maybe you're right though. Maybe it is more binary than that.

How?

How can a right wing court undermine the "precedent bias" (You learn that at your Top 20 law school?) that underpins Roe? I was under the impression that Roe followed out of Griswold and the cases regarding sending your kids to whatever school you wanted. Without overruling that line of cases, how can Roe be undermined (By the way, I love that over/under construction of that sentence.)?

Walk me through the manner in which cases could be decided that would undermine abortion as a fundamental right. I realize you think you have already done this, but how is simply changing the circumstances in which the central holding of Roe could be undermined. You seem to say pin prick after pin prick will eventually mean the holding won't hold up, but my question is how and why is that to be the case? What about the holding of Roe could be weakened over time? I don't understand how saying that women's liberty is a more compelling state interest than protection of the fetus up to the point of viability could be undermined because liberty is very explicit within the Constitution, and it is a generally held supposition that women have equal rights in this country, especially in light of the fact that the 5th and 14th amendments say "person" not "men".

I just don't see how that holding can be washed out, unless of course one attempts to define "fundamental right" into a point in which the words mean nothing.

a little bit

Casey changed the calculus in Roe a little bit. There still is a fundamental right to an abortion. That's the 'central holding.'

But casey rejected the trimester system set up in Roe. Roe said that you could have all the abortions you wanted up until the 2nd trimester, at which point the state could put more restrictions.

Casey says viability instead of 2nd trimester. So, it's a little more flexible, but it's also under attack. That's why you see billboards with things like, "I got my GENES at conception," or "A baby's heart start's beating at 8 weeks." (or whatever). The entire point of those billboards is to push forward the idea of when a fetus becomes viable.

The second thing Casey did was say that the state couldn't 'unduly burden' the right to an abortion before viability. So, in Casey, the spousal notification requirement was thrown out because it effectively gave a veto to the husband/father of the child that would have been impermissible if the state had exercised that same power.

I think Roe/Casey could be refined, but that's not what I'm talking about. My point is that a right wing Court will create the conditions necessary to undermine the precedent bias that sustains Roe and Casey.

Isn't that the situation we are in anyway?

I mean didn't Casey change the calculus of Roe anyway? I don't know for sure, but that was my understanding. It also begs the question of what would be wrong with Roe being refined by a series of future court decisions.

The only problem I have with such a situation is the inherent undemocratic nature of the process, that being the creation of laws from the bench. However, unlike my conservative bretheren, I recognize that our common law system almost explicitly allows for such "legislating from the bench". I would just rather we as a nation argue this point rather than somehow arriving at it from judicial decision because of the potentiality for reading Spencer's SocialStatics into the the Constitution.

On a side note, you mentioned a while back how we need to fetishizing the Constitution. I think that is definitely correct especially in regards to using the amendment process to overturn Supreme Court decisions that are patently unpopular, or wrongly decided. For an unpopular one, I don't have an example, but for a wrongly decided example, look at Buckley v. Valeo, at least from a lefty point of view.

yah

Simply, I was just agreeing with your last post and suggesting the form of the question that I would use to get at the same point.

Yes, it would tell us something about his judicial philosophy. It would let us know if he is an originalist or some variation thereof, or if he thought the Constitution was alive.

Originalism is silly for a lot of reasons. Interestingly, Justice Thomas has suggested that he would kill substantive due process but revive the Privileges and Immunities Clause in its place. I'm sure, of course, he would inform it with different content though. I just mean to say that the original intent of the 14th Amendment has been lost through early misinterpretations, but it's still not something the right wing wants to revive for the most part.

My predictions:

1. Everyone will wring their hands about Roe.
2. The Court won't overturn Roe--at least not in the first few years.

Here's what will happen to Roe: There will be increasing limitations on the liberty interest at stake. That liberty will be slowly eroded over several years. Parential Notification? You bet. Spousal Notification? Absolutely. Spousal Consent? Just a little extension here and there. No exception for the health of the mother? Life beats health. And so on. Then, several years from now, in a case that doesn't directly implicate the central issue in Roe, the court will find that Roe has not held up over time, that it's central holding is too complex to administer well, that it is too controversial and much disputed, and that for those reasons, stare decisis aside, the court is justified in washing its hands of subject. The decision will be that the Court is not the proper governmental institution to make the decision about abortion. End of Roe.

I know what you're thinking: That's too far in the future. But I'm sticking with it. John Paul Stevens is 85 years old. He's not going to make it through Bush's term. Bush will be able to appoint another judge to break the pro-liberty coalition on the Court.

But you're right, this guy will be confirmed, and there won't be a filibuster.

Senator Jeff Sessions (R-Ala-fucking-bama)

I shouldn't be shocked, and I shouldn't have cursed in the title, but this is just ridiculous.

I was a listenin' to the NPR there. To this bit: http://www.npr.org/templates/story/story.php?storyId=4763112

If you listen along, you will find that Jeff Sessions must have failed 3rd grade.
Why 3rd grade? I don't know but it seems just about right.

Why do I think he failed? at one point in this discussion, the dear Senator Sessions says that asking certain types of questions of judicial nominees interfers with the independence of the judiciary. What does this have to do with the 3rd grade? Well, I am pretty sure that is about the time we all learned, (except Jeff Sessions) that our government has CHECKS AND BALANCES.

What is a check and a balance on the Judiciary? The fact that the Senate must confirm the judges of the judiciary! But not in modern Republican land, that is interferance with the judiciary.

What a moron.

What's the response going to be?

Is it going to be something about originalism? or textualism? or one of the other main approaches to constitutional interpretation?

What is that answer going to say about Roberts as a candidate for the Court?

What about the fact that originalism is pretty silly when talking about the 14th amendment and the 5th amendment as they were enacted 80 years apart?

What is mostly important to me in this instance, from a legal point of view, is that the Senators ask pertinent legal questions about this judge's judicial philosophy. At this point in the process, specifically the confirmation point, we the people (I hate that phrase) through our elected representatives in washington, get the opportunity to decide how the constitution will be interpreted in the future. Such a moment extends well beyond simply whether one case, specifically Roe will be overturned or not. The questions should not necessarily be about Roberts political philosophy as much as his legal philosophy. The reality is though, we are going to get a media circus in which no reasoned discussion about the legal philosophy of the country will occur.

That said, the reason I see this as a moment in which we can redefine the abortion debate within a legalistic framework of constitutional liberties is because 1) we need to do something to break the prochoice/prolife deadlock, and 2) when discussing constitutional liberties it is important to stay within the framework of the constitution, which above all else is a legal document.

Moving further to predictions:
1) There will be no filibuster
2) Very likely this guy will be confirmed.
3) The left will ring its hands over whether or not the court will overturn Roe.
4) If the court does overturn Roe, nothing could be better for us going into the midterm elections.(this last one is iffy)

My question

would be, "Can you describe the method by which you would interpret the term 'liberty' as it appears in the 5th and 14th amendments?"

This question isn't about abortion. It isn't about gay sex. It's about judicial philosophy. It's about how one approaches judicial problems.

So, yes, I think you are completely right.

Everyone needs to stop talking about privacy. It's only about privacy in the way that welfare benefits are property. Substance due process is about quasi-privacy to make decisions without governmental interference. It's about limited government. And it's about liberty.

Well

First, let me say congratulations on getting banned from Blogs for Bush.

Remember when you wrote this clap-trap

And the article suggests that it would be more impressive to study how often liberals post comments on conservative blogs.

I find that an interesting challenge. I often just read 'liberal' sources like TPM, New Donkey, the NY Times, etc. And I often don't spend time on conservative sources like Foxnews, etc.

All I can say is "wow"

Alright, moving on, here is what I am thinking today.
After my John Stewart "Whaaaaa?" regarding who Bush nominated. I got to thinking about what the Democrats and the left can do during the coming nomination fight.
First, we need to stop saying that we lost this fight back in November. That isn't what the constitution says regarding advice and consent. Secondly, Bush didn't run a presidential campaign on: "I am going to nominate right wing nutcases to the court, Vote for me!" Bush's campaign was: "I am better at defending this nation" (to put it positively), or "John Kerry is a lying liberal pussy who will sell your daughters into white slavery to our new Al-Qaeda overlords" (maybe not that extreme, but close). So in such a situation, we didn't lose this fight at the election because the american people weren't voting on this fight during the election. Sure sure, the argument can be made that people knew what kind of judges Bush would nominate for the court, but frankly I doubt if that entered anyone's thoughts and voting calculations (assuming rational actors voting, which I guess is exactly my point: folks aren't rational) when they voted. Point being if you believed that Bush was better at defending the nation, but you like all the great things that liberal activist judges have done for america, how would you vote? For your liberal activist judges or for not getting blown up?
A broader point here is that we can turn the whole nomination fight, because I guarantee the republicans will use the "you should have won the election" meme, into a debate about Bush and his campaign. Given the way everyone seems to love Karl Rove right now, we can refocus the debate right back on how sleazy the Bush administration is. Only problems, such a strategy takes time, discipline, and guts, all of which are in short supply in the national Democratic party.

So what else can we do about this nomination fight? We have an opportunity here to refocus the abortion debate. Your turn for a John Stewart "Whaaaaa?"
Put it this way, the Senators on the Judiciary Committee shouldn't ask question like "lets talk about abortion, for or against?" Such a question will get the standard right winger lie: "I will support the law as it stands" Instead the Senators should ask questions about how Roberts feels about a woman's right to liberty/privacy. I would choose liberty because that is the words in the document, and we have had this discussion before. If every Democratic Senator, and then the rest of the Democratic Party, gets a game plan together to talk about liberty and equality, and really discuss the bolts of the Nuts' legal and policy position regarding abortion, I think we can do more damage to any nominee than just talking about abortion. This may sound like reductio ad absurdum of their loony arguments, but that is what it takes sometimes.

Abortion isn't an issue about the right to choose. It is an issue about whether or not the liberty enshrined in the constitution is applied equally to all members of American society, including women.

More things that piss me off

Today's episode: Stupid Phrases.

With the announcement of the nomination, this is one that I keep seeing: SCOTUS. And you know that people are reading it skoe-tuss.

It bothers me because you know these people think they are in the know or something. They say skoe-tuss and suddenly they are wise polticos.

Here you go, morons, how about this abbreviation: SC

Look at that! I got Supreme Court down to 2 keystrokes while yours takes 6.

What did I drop out of my abbreviation? Well, let's see: OTUS. Of The United States. First off, 'of' and 'the' aren't normally used in abbreviations. It's the FBI, not the FBOI. So, those two should be thrown out on principle. At the least, the abbreviation should be SCUS. That's an improvement over SCOTUS.

What about that US? Is that completely necessary? I'm glad you asked that. No. It isn't necessary. When you say the Supreme Court, everyone knows what you are talking about. So, stop talking. What does that leave us with?

SC.

That'll do.

hmm

John G. Roberts.

Who is he again?

This is a Harry Truman nomination: If you can't beat 'em, confuse 'em.

I am . . .

banned from blogs for Bush.

Just tried to post a comment and I got a screen saying my comment was denied for questionable content.

Incidentally, Mark Noonan sent me two emails out of our last exchange. The contents follow:

Sorry, but you'll have to address the subject of the thread...why does NARAL insult people, and what does it mean politically?

Thanks,

What's funny about this one is that he eventually posted what I said. This email was associated with the post I started, "Mark, what are you talking about?" Why he would deny it and then post it is unclear.

The second email:

Reece,

Geesh, are you dense, man? We're not talking about the issue you'd prefer to talk about but about the issue of the thread...NARAL has a nasty, rude thing going on and we'd like to know what you think about it.

I'm actually glad I got this one, because it contains the content of my last post in which I said this:

Scar,

The straw man gets grows. I didn't see anyone catching this, but this naral group is from Washington (state). It's not the national group.

This is the national group's site:
http://www.prochoiceamerica.org/index.cfm

The site that Mark pulled the ad from was www.wanaral.org. What's the 'wa' for? Well, its for Washington.

So, now Mark's post has 2 straw men.

1. He's attributing to the group a position they do not hold so that he may attack it.

2. He is saying that a position held by part of an organization is held by the whole organization.

Those are both straw man arguments:
"The Straw Man is a type of Red Herring because the arguer is attempting to refute his opponent's position, and in the context is required to do so, but instead attacks a position—the "straw man"—not held by his opponent. In a Straw Man argument, the arguer argues to a conclusion that denies the "straw man" he has set up, but misses the target. There may be nothing wrong with the argument presented by the arguer when it is taken out of context, that is, it may be a perfectly good argument against the straw man. It is only because the burden of proof is on the arguer to argue against the opponent's position that a Straw Man fallacy is committed. So, the fallacy is not simply the argument, but the entire situation of the argument occurring in such a context."

http://www.fallacyfiles.org/strawman.html

If you are arguing against a position that is not held by your opponent, you are committing the straw man fallacy. Mark does this attributing positions to NARAL, his and your opponent, which NARAL does not hold.

As for Washington, in 2004, it elected a Democratic Governor, a Democratic Senator, 6 Democratic Representatives (out of 9 districts), and went for John Kerry over Pres. Bush by 7%. So, Mark missed again when he said Dems are getting shellacked at polls. Whoops!

Scar, are you serious that you don't agree with anything NARAL supports? Do you not agree with this:

"Finally, we must launch a national effort to require comprehensive sex education throughout our primary and secondary schools. This approach would protect teens by promoting abstinence while simultaneously providing teens with the contraceptive and STD/HIV prevention information they need to make responsible decisions if and when they become sexually active."

Mark does. He said he wanted abstinence to be "an element" of sex education. How can he be any clearer?

Incidentally, if my posts aren't worth reading, why do you continue to do so, Scar? It's your choice, dude.

Damn it's hard being right all the time.

I hadn't checked that email address in 8 days, so I didn't know I had these. Here's how I responded.

Mark,

Sorry, I check this email address about once a week. Nonetheless, you're a moron. There was no insult by NARAL. You were attributing an position to NARAL that was being advanced by NARAL of Washington. Again, Democrats are kicking ass in Washington. Insult or not, you got nothing here because Dems are winning in Washington. Whatever insult your perceive is irrelevant given that your entire premise, namely that Dems are getting pasted at the polls due to things like
the Screw Abstinence party, is false.

Dems in Washington, which is the only relevant jurisdiction here, are winning. A lot.

Beyond that, you still want to attribute to NARAL a position that they do not hold. NARAL has not insulted you. Find me a link with from NARAL's website, www.naral.org aka www.prochoiceamerica.org, that leads to a Screw Abstinence party. You know what, you can't. It doesn't exist. Why? Because they didn't have anything to do with the event that was organized in Washington.

Understand now or do I have to explain it another time?

You are specifically spreading falsehoods in order to stir up partisan fever. Weak.

Reece

Fun Times.

Vermont takes all the good ideas.

From Jon Margolis "Vermont: The Greening of Welfare" in Making Welfare Pay, Robert Kutter (ed), New Press, New York, 2002, p. 43-44.

It is relatively easy to take the kinder, gentler approach in a small homogenous state where kind and gentle are practically a tradition. Indeed, Vermont's political culture sometimes threatens to degenerate into cloying and treacly. Still, there is something to be said for civility, and state officials are serious about it, as they recently demonstated in the generally civilized debate over gay and lesbian partnerships. To take just one oddity: Representative Poirer is a Democrat, which is unsurprising for a committee chair in a legislative body with a Democratic majority. But his Senate counterpart, Health and Welfare committee chair Helen Riehle, is a Republican, though the Democrats run that house, too.

In Vermont, this is no big deal. It isn't that there's no partisanship. It's just that partisanship is restrained. This may be the only state in which the center aisles do not divide the parties in the legislative chambers: Senators sit by county, and House members draw their seats by lot. It's harder to get bitterly angry at the person sitting next to you everyday.

That's what I'm talking about, except that I think it would work even for large and diverse states and for the nation as a whole.

Nothing New Under the Sun

From Theda Skocpol's "The Missing Middle" (W.W. Norton, New York, 2000) at 46-47:

When Ronald Reagan achieved the presidency in 1980, fiscal conservatives hoped he would cut social spending on the middle class as well as programs for the very poor. But after briefly raising the possibility of such reforms, President Reagan and his budget director, David Stockman, quickly retreated from cutting middle-class programs in the face of an upsurge of public concern. Thereafter, the Reaganites concentrated rhetorical and budgetary fire on means-tested social spending for the poor. At that point, in the mid-1980s, opponents of Social Security retreated to a more indirect and long-term effort to undermine middle-class faith in the Social Security system. Following tactics laid out in a remarkable article by Stuart Butler of the Heritage Foundation and Peter Germanis of the Cato Institute called "Achieving a Leninist Strategy," critics stopped calling for immediate cuts in Social Security and Medicare benefits, and instead began talking about a looming future "crisis" for the nation as a whole.

Miller

Salon has an article about the left's response to Judith Miller's jailing. Apparently a lot of people are thinking along the same lines as you. The article is on their front page, but with their advertisement thing, I can't really link to it.

It's too long to retain my interest through the whole thing, but it opens with the choice quote:

"New York Times reporter Judith Miller is sent to jail for contempt of court, but not for writing months of front-page fiction about Iraq's weapons of mass destruction," a reader in California recently wrote to Salon. "Al Capone did time in prison for tax evasion, but not for murder. I guess you have to take what you can get."

I don't see your point

So what if the Gossipy harem that is the washington press corps, more specifically the White House Press Pool, decided to start asking tough questions of McClellan now that one of their own is in jail and they all feel threatened. Who cares? What Washington reporters care about isn't what middle america cares about.

The biggest tragedy in my personal, immediate life right now is that baseball is on hold for the all star game.

I should come clean though, there is more at work here than I have admitted. Frankly, given the state of her reporting before the Iraq War, Judith Miller SHOULD be in jail. I realize that it is an untenable position to say that a reporter should be in jail for the quality of her journalism, but that is my position anyway. Miller was a White House hack in the run up to the war, "reporting" on all sorts of factually unsubstantiated items, and some that seemed to play perfectly into the neo-cons hands. For her stenography, the brief time that she will spend in jail while this grand jury investigates is not enough. She isn't fit to hold the "Slow" signs on a highway construction crew. So I am sorry if I am not going to shed a tear for her, or give a rats ass about this story.

I realize it appears as if I am admitting a great amount of bias, and that bias is why I don't think people care about this story out here in the middle. However if you take a look at the front pages, editorial pages, and letters to the editor of Midwestern and mountain state small town newspapers (defining such as newspapers in cities 200k people or less) I guarantee you will not find this story reaching any level of prominence.

The simple fact that McClellan is dissembling about the whole business belies what is going to occur, namely NOTHING!

On Edit
Here is an example of what I am talking about:
http://slate.msn.com/id/2095394

I hate linking to other bloggers but, this is good

Here is a post about the person I am supporting for President in 2008, or 2012, or whenever he decides to run.

http://www.huffingtonpost.com/theblog/archive/david-sirota/a-bluntspeaking-gunto_4011.html

This guy is my kind of Democrat. From the Flyovers of Montana, loves guns and scotch, and the quote in the post shows a great depth of knowledge. (specifically the bit about the use of the word "crusade")

Schweitzer in 08!

Bush <3 Turd Blossom

While I agree that Bush loves Turd Blossom, there might be something to this.

I get this feeling because I read a partial transcript of today's White House briefing which was linked from Huffington Post.

The reporters were brutal. Or at least if I had been asking the question, my tone would not have been civil. Just the questions:

Q: Does the president stand by his pledge to fire anyone involved in a leak of the name of a CIA operative?

Q: I actually wasn’t talking about any investigation. But in June of 2004, the president said that he would fire anybody who was involved in this leak to the press about information. I just wanted to know: Is that still his position?

Q: Scott, if I could point out: Contradictory to that statement, on September 29th of 2003, while the investigation was ongoing, you clearly commented on it. You were the first one to have said that if anybody from the White House was involved, they would be fired. And then, on June 10th of 2004, at Sea Island Plantation, in the midst of this investigation, when the president made his comments that, yes, he would fire anybody from the White House who was involved. So why have you commented on this during the process of the investigation in the past, but now you’ve suddenly drawn a curtain around it under the statement of, 'We’re not going to comment on an ongoing investigation'?

Q: So could I just ask: When did you change your mind to say that it was OK to comment during the course of an investigation before, but now it’s not?

Q: Scott, can I ask you this: Did Karl Rove commit a crime?

Q: Do you stand by your statement from the fall of 2003, when you were asked specifically about Karl and Elliot Abrams and Scooter Libby, and you said, "I've gone to each of those gentlemen, and they have told me they are not involved in this"?

Q: Scott, this is ridiculous. The notion that you're going to stand before us, after having commented with that level of detail, and tell people watching this that somehow you've decided not to talk. You've got a public record out there. Do you stand by your remarks from that podium or not?

MCCLELLAN: If you'll let me finish.

Q: No, you're not finishing. You're not saying anything. You stood at that podium and said that Karl Rove was not involved. And now we find out that he spoke about Joseph Wilson's wife. So don't you owe the American public a fuller explanation. Was he involved or was he not? Because contrary to what you told the American people, he did indeed talk about his wife, didn't he?

Q: Do you think people will accept that, what you're saying today?

QUESTION: You're in a bad spot here, Scott... because after the investigation began -- after the criminal investigation was under way -- you said, October 10th, 2003, "I spoke with those individuals, Rove, Abrams and Libby. As I pointed out, those individuals assured me they were not involved in this," from that podium. That's after the criminal investigation began.

Now that Rove has essentially been caught red-handed peddling this information, all of a sudden you have respect for the sanctity of the criminal investigation?

Q: So you're now saying that after you cleared Rove and the others from that podium, then the prosecutors asked you not to speak anymore and since then you haven't.

Q: When did they ask you to stop commenting on it, Scott? Can you pin down a date?

Q: Well, then the president commented on it nine months later. So was he not following the White House plan?

Q: Well, we are going to keep asking them. When did the president learn that Karl Rove had had a conversation with a news reporter about the involvement of Joseph Wilson's wife in the decision to send him to Africa?

Q: When did the president learn that Karl Rove had been...

Q: After the investigation is completed, will you then be consistent with your word and the president's word that anybody who was involved will be let go?

Q: Can you walk us through why, given the fact that Rove's lawyer has spoken publicly about this, it is inconsistent with the investigation, that it compromises the investigation to talk about the involvement of Karl Rove, the deputy chief of staff, here?

Q: Does the president continue to have confidence in Mr. Rove?

Q: So you're not going to respond as to whether or not the president has confidence in his deputy chief of staff?

Karl Rove Must Go! and other stupid fantasies

First, lets go a little meta. I just realized that by posting my reactions to what others write elsewhere may have more value as milemarkers of the type of things i read on the net than the actual value of my reactions. Dunno, but food for thought.

Moving on.

Lately, lefties seem to be salivating over the possibility that Karl Rove is going to do one of several things or have one of several things done to him. This all relates to the apparent trouble Rove is in regarding the outing of Valerie Plame. Keeping with the title of this blog, I have to say I don't care. what Rove may or may not have done. I am sorry if I see other actions this administration has done as more threatening to our national security than whether or not "turd blossom", as he is so affectionately called, leaked Valerie Plame's name.

I will go even further and say that virtually NO ONE out here in the middle gives a rat's ass over what a New York Times reporter is doing, whether it be spending time in jail standing up for freedom of the press or not, but keeping with the direction of this post I want to specifically discuss this article by Timothy Noah:

http://www.slate.com/id/2122393/
for other examples see also, tpmcafe.com, huffingtonpost.com, Salon's "War Room", either way you get the point.

Okay, what Noah seems to be saying, and what a lot of other lefties on the net seem to be hoping is that some how law and justice will triumph over Karl Rove's nefarious activities, and Rove will do, or have done to him, one or more of the following 1) Resign, 2) be fired, 3) be indicted for either 3a) leaking Plame's name or 3b) perjury before a grand jury, or 4) go to jail.

Well folks, I really only have two things to say:
1) IT AIN'T GONNA HAPPEN!

and 2) NO ONE CARES!

Lets address these points separately.

First, Rove isn't going anywhere. I am sorry but no amount of political or legal pressure is going to push Rove out of the White House. For the love of Christ, his nickname is Turd Blossom! Bush loves this guy! Let me put that differently, the President will not let his advisor resign or go to jail. Period! end of story, ain't anything else to say. Stop wishing and hoping people, start being realistic. Rove will be with this white house till the end. But but what about the special prosecutor!, you might sputter in all your coastal fury. well, in a few months he will say he couldn't find anything, and close the grand jury. Just cause a grand jury convenes doesn't mean indictments follow. In this notoriously loyal administration, where you can screw up an invasion, putting american fighting men and women in harms way, and still keep your job, do you HONESTLY think that what someone may or may not have said to a reporter is going to lead to their downfall?

NO ONE CARES! The people out here in the middle, you know the ones we need for a Democrat to return to the White House, they don't care about this story. This issue doesn't help national Democrats. I am sure the beltway types think it does. But haven't beltway Democrats been proven wrong enough lately? Lemme put it differently, this issue doesn't help us! Let us concentrate on other things! This issue won't help us convince the 3 percent of voters we need to win in 08. It doesn't convince voters to vote for us. It looks like sour grapes, which makes us look like whiners. Rather than looking for blood, lets treat this administration like the lame duck it is.


Furthermore, in the context of huge hurricanes, London bombings, and Supreme Court retirements, this story has no legs. The folks don't care.

Some time, I wish that a pollster would look at the dissimilar populations of the "swing states" alone, independent of what national politics are, just looking at those swing states out here in the great middle. The data would need to be aggregated, not individualized for the states, so as to avoid pandering to one state population, simply to get a conception of what these people care about, and you know what will be bottom of that list? Judith Miller and whether or not an advisor to the president broke the law. Maybe then, lefties would realize their fevered fantasies are a waste of time, and would instead direct their energies into developing new ways of organizing the party and selling our ideas.

I think this is the type of story that ultimately hurts the left. It is the type of imperial court gossip that makes those of us here in the provinces hate politics. So it is best that we let it go. Of all the things we can use to attack the Bush administration, this is probably the weakest and dumbest in terms of helping us win future elections and return to the status of majority party.

Encounters with Mark Noonan

Your post below about your visit to www.blogsforbush.com inspired me to go take another look. When I got there, a post by your beloved Mr. Noonan was on top.

I posted a comment or three. Here's how the exchange went:

His original post:

As sure as the sun rises in the east, we can count upon our leftists to be, well, ever increasingly vulgar as time goes on. The latest example of this is from NARAL:

This is an advertisement for NARAL's "screw abstinence" party - an event designed to raise funds for NARAL's programs to "secure comprehensive and medically accurate sex education" for all and sundry...and I guess "comprehensive" for NARAL doesn't include the fact that the only 100% effective means of preventing pregnancy and STD's is, well, abstinence.

When our Democratic friends wonder why they get shellacked at the polls on the issue of moral values, they've really no further to look than NARAL and similar groups. This is meant as an insult to everyone who disagrees with their views - and the insult does get noted. NARAL is not so much defending its views on the matter of sexual education, but insulting everyone who holds a different view. What, really, would be wrong with a sex education program which includes an element of abstinence? Nothing that any rational person can see...but NARAL goes into fits whenever anyone mentions the word "abstinence".

The historian Will Durant, writing of the decadance of ancient Rome, described this NARAL attitude (which is prevelant in the political left) as "a shallow sophistication which prides itself on childlessness and despair". For NARAL, sex is for gratification and nothing more - an animal action disconnected from anything higher than momentary physical pleasure. Others disagree - and as those who disagree are not into childlessness and despair, the future looks bright.

My first comment:

I guess you all would rather argue with a strawman than take a look around.

Here is NARAL's page about proper Sex Education.

http://www.wanaral.org/s09issues/200307082.shtml

Note that they support a comprehensive sex education that includes teaching both abstinence and contraception.

The key parts:

"Sex education programs discussing both abstinence and contraception have been proven to increase knowledge, delay the onset of sex, reduce the frequency of sex, and increase contraceptive use."

"Research by the National Campaign to Prevent Teen Pregnancy in 2004 shows: “To date, six studies of abstinence-only programs have been published. None of these studies has found consistent and significant program effects on delaying the onset of intercourse, and at least one study provided strong evidence that the program did not delay the onset of intercourse.”"

His response:

Reece,

Michael said it pretty well - I'll only add, also, that you don't gain converts to your cause by using insulting terms like this.

It must be faced that the pro-abortion lobby, of which NARAL is a leading part, is contemptuous of traditional morals...they are part and parcel with that bizarre leftwing thinking which holds that while can talk kids into not smoking, we can't talk them into not having sex.

My Response:

Mark,

Where was I being insulting? If I was, it was unintended, but calling a strawman argument a strawman argument is not insulting.

And your argument was a strawman: Your claim was that NARAL is against sex education that contains abstinence. That is an easy target to attack because no one agrees with it--including NARAL.

That's the definition of a strawman argument:
http://www.fallacyfiles.org/strawman.html

You didn't attack NARAL's position. You mistated there position as seeing something "wrong with a sex education program which includes an element of abstinence."

They don't. They want comprehensive sex education which includes both abstinence and contraceptive information. In fact, that is your implied position: "What would be wrong with a sex education program which includes an element of abstinence?" The inference is that nothing would be wrong with it. NARAL agrees.

Mark, I guess the 2/3 of Americans who think Roe v. Wade shouldn't be overturned are against traditional values too? Or the 4/5 of us who think abortion should remain legal in at least some circumstances?

His response:

Reece,

What straw man argument? What you are attempting to do here is do what liberal/left posters always attempt to do - change the subject when caught.

The subject of this thread is the insult offered by NARAL to traditional morals via their "Screw Abstinence" party...other issues may be wrapped up in this, but what you are desperately trying to do is a debator's trick of pulling away from your weakest point and trying to cloud the issue...you don't want anyone talking about the disgusting insult offered by NARAL; you'd much prefer we engage you in your pointless debate about whether or not the National Abortion Rights Action League favors or opposes abstinence education...who the f*** cares if they support it or not? Their attitude about it ("screw abstinence", eg) says more about it than platitudes offered about how abstinence can be part of a sex education program...and we know, additionally, from reading up on NARAL that, at best, they give a bit of lip service to abstinence before they go right into a demand for graphic, amoral sex education and advocacy of the really sick and disgusting platform of federally funded abortion on demand.

My response:

Mark, what are you talking about? I pointed out your strawman argument. I don't really feel like repeating myself.

"What, really, would be wrong with a sex education program which includes an element of abstinence? Nothing that any rational person can see...but NARAL goes into fits whenever anyone mentions the word "abstinence"."

You agree with NARAL. NARAL agrees with you. They haven't gone 'into fits.'

Your point was that since NARAL is against abstinence, people don't vote for Democrats in elections.

"When our Democratic friends wonder why they get shellacked at the polls on the issue of moral values, they've really no further to look than NARAL and similar groups."

But NARAL isn't against abstinence. They are against abstinence only sex ed.

What's the problem here? You created a problem by assigning to NARAL a position that the group does not hold.

So, in short, you care if they support it or not. Or at least cared enough to post that they did not support it.

Now I am changing the subject:

Disgusting insult? I didn't realize people had to be so PC around you conservatives. I'm sure someone will let the fine people at NARAL know that you have been offended.

Well, before I get banned, I'm out. See you all next month. Or not.

Well, that's it. What can you do with these people?

Dammit

"Since 1968, when Nixon was elected, Republican presidents have appointed 1,040 judges; Democrats have named 625. While many of the Bush appointees are replacing jurists named by previous Republican presidents, toward the end of his term Bush could have more opportunities to replace some of the Clinton judges, which would have even greater impact."

From Yahoo News: "Bush's Judges Already Making Their Mark"

Terminology

We've talked some about different ways to approach issues. Sometimes we need new terminology. I know you'll protest this post on the grounds that we shouldn't be afraid to state our honest positions. And I agree with that, but I think that some terms aren't fully descriptive.

The one that strikes me right now is 'environmentalist.' I don't even know what that means. It means someone who cares for the environment, but don't we all care for the environment? Some more than others, I suppose, but even pro-business Republicans don't want an ugly and polluted world. They just think that economics will somehow take care of it. So, at least we can fault them for being stupid.

So, what content does the general term environmentalist have? Certainly there are different types of environmentalists. There are conservationists, who are for judicious use and replenishment of resources, and there are preservationists, who would be for not messing with it in the first place.

But what is the ethos of an "environmentalist?" There is something to it. We know what people are talking about when they say enviromentalist, but it's specific content isn't encompassed in the term.

So, someone should get into that content, find out what it means to be an 'environmentalist' and then, perhaps, suggest a better term.

There is nothing particularly wrong with "environmentalist," but maybe there is a term that could sell better.

DU isn't really a moderate site

But the piece is honest. From an advice column called "Aunti Pinko" comes reasonable position: Believe what you want to believe. Switch parties if the Dems really represent your views. If not, stay a Republican.

It's just honest. I don't know what else to say about it.

Why

What about that post makes it interesting? I read the article, and I see the persons point for the most part, but what about it struck you?

interesting piece from DU

http://www.democraticunderground.com/auntie/05/186.html

Secret Al Qaida Organization . . .

Reminds me of Monty Python's Life of Brian. The Judean People's Front, and the People's Front of Judea.

Morning thoughts

Regarding your defeatism: Did you see the story awhile back about Edison Schools in Pennsylvania and what happened to the first major public school run by a private company? I personally don't have the link, but the gist of it: Total disaster. I wouldn't expect anything less from a Bush. But we need to hype the things that prove them wrong.


Regarding London: Cnn's first headline, and no I don't know how to capture it, is "Terror Hits London". Which actually isn't true. Terrorists attacked, or "hit" if you will, London. This is the problem with the "war on terror", just as all the other dumb "wars" we have had like on poverty and drugs. You can't have a war on a tactic. You cannot personify a tactic. Terror just doesn't float around in an ephemeral world waiting for somewhere to "hit" Such a conception, inherent in the words "war on terror" denies the required human agency for terrorist attacks to occur. In fact, the words "terrorist attacks" is a much better word because the "terrorist" part puts the blame squarely where it belongs, namely on a human being known as a terrorist.

The name of the group sounds made up, but probably is real. By made up I mean they sound like a bunch of amatuers. The Secret Al Qaeda Jihad Organization in Europe. That sounds like being put on "double secret probation." I don't doubt that the attacks were likely carried out by islamic extremists, I am attempting to make fun of those guys. I guess I should express some relief that it is someone other than Catholics bombing London these days. That might have been in poor taste.

Suffering from an Extended Bout of Defeatism.

And I know I am.

I just don't know how to defeat people who are convinced they hold the absolute truth. Nothing can disabuse them of that notion. How do we fight it?

Huffington Post had a link to an article out of Florida:

Gov. Bush touts Christian-based program for schools

ugh. What do we do with this?

Future Justice Crazy Pants

I took Saletan's point to be that we won't see a court willing to overturn Roe. He's saying that Bush should appoint someone now that will appear anti-Roe, and this will satisfy the pro-lifers, but then later he can appoint someone who won't vote to overturn Roe. Doing so, Bush will be able to maintain a pro-Roe majority.

Why would Bush want to do that? Because as Roe goes, so goes the Republican coalition.

The point is that the wingers won't be demoralized by a justice who later upholds Roe; they will be energized.

Dude. sorry but you get a "dude."

While I agree with you that your B.A. in philosophy with cum laude honors from University of Missouri is worth no less than Matt Yglesias' B.A. in philosophy with magna cum laude honors from Harvard, and in fact might be worth more in some respects, but your whole post comes off as sour grapes. What I mean is that nothing about having a degree from Harvard makes one a great critical thinker. It doesn't automatically confer greatness on someone, but frankly you shouldn't be pissy towards someone who you would probably be friends with if you met at a bar.

You are right, there is nothing about Matt Yglesias' that makes him more or less qualified to comment on politics than you or I, but have you been submitting essays and commentary to national magazines? What about regional magazines? What about city papers or magazines? To some extent, the reason people fawn over Yglesias is because he has a readership because of his work. That isn't saying you can't achieve that readership, but just that to some extent you need to pay your dues to get it.

Maybe this post is a little too personal to have up, but I am keeping it up for awhile.

You can pull it after you read it, if you want.

Great Article at Slate today

http://www.slate.com/id/2122012/

William Saletan makes a good point here about what more than likely will be how Bush will approach the coming Supreme Court nomination fight.

What I take away from this article as relevant for Democrats is that we should appear to fight like hell against whoever Bush nominates, but at the same time ultimately stand united against the nominee but appear gracious by allowing the vote to take place.

With what Saletan says is on the table for the next term, I think it would greatly help the Democrats going into 06 if we ramp up the anti-right wing vote in this country by fighting against a right wing jurist, but ultimately allowing them to take the seat because then in June/July of 06, when Future Justice Crazy Pants either 1) reveals themself to be the right wing loon they are, our base is energized going into the midterms or 2) the Justice turns out to be a moderate, at which point the Right flips out and is demoralized.

Saletan also points out that the polling data on Roe v. Wade shows that 2/3rds of the nation doesn't want Roe overturned, and I almost guarantee that an even greater percentage never want to see abortion criminalized. In such a situation, how could we not benefit from any anti-right wing backlash over the possible overturning of Roe v. Wade? Let the Republicans have their Court! The political backlash against their cherished judicial goals will be more than enough to beat their party back down into the minority.

I dunno, just a thought.

One thing that is a bit confusing about Saletan's position is that he apparently believes that the Right has "won" the abortion debate. Leaving aside the silliness of "winning" a debate in an ongoing democratic process, I fail to see how the right has won the debate when in his own article he mentions that 2/3rds of the nation doesn't want Roe overturned. How can the right "win" when their goal is overturning of Roe, and 2/3rds of the country disagree with that goal?

Curious.

More Fevered Rantings

One thing that tends to drive me nuts are deeply held admirations for the past.

I just don't get it. It doesn't make sense to me.

This post was generated from the last one. I decided to go read Yglesias's blog at tpmcafe. One of his posts links to a blog by Mark Kleinman. Kleinman's blog links to his "common-place book."

The problem is that he is trying act as a 18th Century property owner.

Our future will be informed by our past, but our future will be composed of its own forms. We will not emulate the past. It is our world, let's act like it.

Beyond the Blog: Manufactured Authority

I keep going back to tpmcafe.com to see what they have up. That's not a behavior I can explain. Maybe it's pathological.

I really do think that tpmcafe is representative of a post-blog media form that is beginning to emerge on the internet. Another example is Arianna Huffington's Huffington Post, which combines blog-style commentary and reader discussion with Drudge-style headlines.

If blogs were supposed to be the decentralization of political commentary, what do these new sites represent? I keep coming to the conclusion that they are a real problem.

These sites manufacture authority. The official contributors to tpmcafe likely could not pull down a significant readership on their own, but put them on a site endorsed by Josh Marshall, and they have instand credibility, despite their background.

Take as an example Matthew Yglesias. Who is Matthew Yglesias? He's a 24 year old yahoo. There is no reason this man's views on anything carry any more validity than yours or mine. But give him a place at tpmcafe and suddenly people think he is some genius.

And that's what I really find disgusting about that site. I am disenchanted with the contributors, and no amount of graduate degrees from whatever university you like will make up for useless commentary. People listen though, because the site itself generates legitimacy without any effort.

I know my position on this is self-defeating because any complaint I have can easily be levelled against our fevered rantings here, but it really bothers me that we have removed all barriers from punditry, especially on sites that have the ability to be influential.

What barriers should there be? I'm sure how to completely answer that question. I seriously doubt that my life will be academic, but there need to be sound bases for propositions and that may include academic research, or, at a minimum, clear thought.

Alright, so

I got up at 10:00 this morning, had a late night celebrating the birth of our nation, Read Reece's post, and by 10:11 I had my post out in response. I start checking the daily news. Went to Salon, read the "Daou report" their list of blogs, and here a scant 25 minutes after waking up to another beautiful God-given day, my blood is up, and I am pissed.

Can these people be more stupid?

http://www.blogsforbush.com/mt/mt-tb.cgi/4824

Lets have a face off!

In corner 1! Weighing in at a scant few ounces. Hailing all the way from Philadelphia, Pennsylvania, the senior man on the circuit, the U.S. Constitution!!!! (crowd going wild noises here).

In Corner 2, Currently hailing from Las Vegas, Nevada, weighing God knows how much (as I have never met the man, although I could imagine how that statement could be taken as a personal attack), the up and coming kid, Mark Noonan! (booo-hiss!)

Given its historical strength, the Constitution bravely decides to let Mr. Noonan go first!

Mr. Noonan: "the President gets to pick whomever he wants,"

Oooh-a nice first jab, a little fascistic, but not bad (i know another personal attack) I mean we all should just let the President do what he wants right? He is our fearless leader. He knows what is right and what is wrong, that is why we picked him right? How will the constitution reply to such an opening?

U.S. Constitution: The president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court,"

OOOOOH Smack! That has to sting Mr. Noonan, he should be dazed and confused right now. Wow. I can't see anyone coming back from that!

Mr. Noonan: "and the American Constitution and our political traditions require an up or down vote on the nominee."

What? that doesn't make any sense. what a strange way to attack the Constitution. That isn't a response to the Constitution. That is just gibberish. Colorless green ideas sleep furiously. How will the constitution reply to such a statement? This is getting interesting folks.
Mr. Constitution, what is your response?

U.S. Constitution: . . . . . . .

The U.S. Constitution doesn't have a response?!?!?! This truly is a tragic day. it is almost as if Mr. Noonan never read the Constitution. He doesn't even know what is in the document! The constitution cannot win this fight when put up against someone with such a strange attack. By convienently ignoring the Constitution, and walking out of the ring... Wait! Wait, what is going on down there? It appears that Mr. Noonan is proclaiming victory! This is crazy, I have never seen a fighter leave the ring and then proclaim victory. Apparently Matt Drudge is now reporting Mr. Noonan's victory on his webpage. What?!? hang on folks, a new report is coming in from CNN, they are saying that Matt Drudge is reporting Mr. Noonan's Victory of Rhetoric over the U.S. Constitution. This is getting stranger by the minute folks, but now Drudge is reporting that the mainstream media, specifically CNN is confirming his story, specifically confirming that he is reporting that Noonan won. At times like these, all I can say is OOOOOOHHHHHH THE HUMANITY!

Thank you

I really like your reasoning, although you get a bit murky at the end when you are talking about higher scrutiny. Whose scrutiny? the public's or the Court's? Really though, don't worry about it because you can easily mean both.

The reasoning you outline is why, I believe, the anti-abortion types are fighting so hard against the "morning-after" pill. It is as if they know that the closer to conception the state intervention into the life of the fetus begins, the greater the deprivation of the liberty interest for the woman. It is almost like they recognize the inherent lack of human-ness of a fertilized egg, and so they want to prevent the left from trying to win, and what an easy victory it would be, on this point. An ideal world, at least in my mind, would be a world without abortions but with plentiful "morning-after" pills. Although, just given the irresponsibility of people, and the lack of good sex education for Christiany high school girls, it is likely there would still be SOME abortions.

That reads convoluted to me, but I just got up.

Rethinking Abortion

With the upcoming fight for the next member of the Supreme Court, it is worth rethinking our position on abortion. Often Dems appear to just be in favor of abortion without having thought it through while Republicans have clear positions that are easily understandable and communicable.

I came across another blog here at blogspot in which the author asked individuals to provide justifications for their positions on abortion. I took him up on that challenge. Below is an edited version of what I wrote. I'll have some more comments after the quote. You can find the originals here.

First, it is important to understand that rights are not intrinsic in anything. It is certainly possible to have a democratic government that doesn't recognize any broad conception of rights. Take a look at ancient Athens.While we live in a democracy that recognizes rights, there are no such things as natural rights.

“Rights" are a shorthand for talking about legal positions and legal enforceability. When someone says they have a right to free speech that means the government is legally limited in the actions it may take regarding an individual’s speech. When someone says they have a right to life, that means that they cannot be deprived of their life without due process of law--and the only process sufficient is a murder (or treason) trial conducted under specific fair procedural requirements.

Those are just examples, but the point is that natural rights don't exist. Rights are dependent on the existence of a government willing to enforce them.

Second, abortion presents a conflict of rights. On one hand, we have a woman who has a constitutionally protected right to liberty in both the 5th and the 14th Amendments. On the other hand, we have a fertilized egg, an embryo, a fetus, or what may be a human life at any other stage of gestational development. Our government, through the Constitution was instituted to protect both liberty and life. In order to deprive someone of liberty it must be shown that government has a compelling interest in the goal for which it is depriving a person of liberty.

While some people may want the courts to decide when in course of human development a fetus becomes a person, that is not what is at issue in Roe and the Supreme Court’s other abortion decisions. The question is when does the state have a compelling interest in protecting the life of a fetus. Can we honestly say that government has a compelling interest at the time of conception?

I do not see any rational way to get to that point. A zygote or even a fertilized egg may be alive, though like Justice Blackmun I am unable to make that determination when so many people disagree. Even if it is 'alive,' how does that simple fact demand that it is protected in the same way a 5 year old child, or a 30 year old man, or a 70 year old woman is protected?

It is not even terribly likely that the fertilized egg will make it on its own. A lot of them just don't survive. Given the uncertainty, is it really true that the state has a compelling interest in ensuring that it remains alive?

Certainly, the life of a fetus becomes a compelling concern for the state at some point in the development of the child. I personally cannot imagine a rational distinction between a newborn infant and the same child still in the womb five minutes earlier. That is a matter of chance at most. The challenge is to determine at what point between these two extremes the government may begin to regulate abortion in order to protect the life of the fetus.

In the early stages of a pregnancy, a woman's liberty is a actual compelling interest while the life of a fetus or a zygote is only potential until it is recognizably similar to all those persons that we actually protect. This liberty interest is not small.

Consider simply that the statute at issue in Roe was designed to put the full force of the state's criminal law to work against doctors who performed abortions and women who had them. The government was not just going to tell them to stop; it was going to take them out of their houses and communities and place them in prisons. There is no clearer deprivation of liberty than this.

There is a second aspect of liberty at issue in the abortion debate—possibly a more serious problem. Banning abortion in effect uses the full power of the state to force women to undergo the strain and labor of pregnancy, of childbirth, and forces them to spend time, money, and effort until the child is fully grown and can fend for himself. This isn’t to be underestimated.

The liberty concerns here are enormous. The concern for the life of a fetus cannot immediately match the liberty concern at conception. Over time, as it develops into infant, the government’s concern for its life also develops. Thus, the point is not that a woman’s liberty in her pregnancy is unlimited—it can’t be—but neither can the state forcibly deprive her of that liberty until the concern for the child is compelling.

That is the correct balance. Early in a pregnancy, when there is nothing more than a fertilized egg, the state shouldn’t be able to regulate women from having abortions.

The only thing I have to add is that my position is almost exclusively derived from arguments made by Justice Blackmun in Roe v. Wade. It is worth a read, and everyone should really think through it to decide where, if at all, it was wrongly decided. That is why this post is entitled "Rethinking Abortion." It's rethinking it, but only in order to bring to the fore the arguments that already exist.

I personally believe Roe does strike the right balance. Under Roe some abortions are permissible, even for any reason such as emergency contraception. It takes seriously a woman's decision to become pregnant or not--and in doing so takes seriously the scope of what is at stake in a pregnancy. A woman cannot simply have a child. Pregnancy takes time and effort and money and support. If a woman thinks she cannot support a child, or cannot bear the costs and sacrifices of a pregnancy, then it may be the best decision for her not to have the child.

Let me finish by noting the conflict between that concern and parental notification statutes. Here in Texas, a minor must either notify her parents of her intent to have an abortion or, under very strict circumstances, can ask the courts to grant permission without parental notification. The judicial by-pass can only be trigger if the girl demonstrates that she is sufficiently mature and has considered all her choices.

On the face of it, that sounds like it might be acceptable. Unfortunately, a lot of these girls are 13 or 14 years old. There is no way that they can possibly be mature enough, especially in Texas. In one case here, a dissenting judge argued that the minor should not be granted a judicial by-pass to the parental notification requirement on the grounds that she was not mature enough to have an abortion. He reasoned that her immaturity was evidenced by her decision not to tell her parents.

If we are serious about the liberty of the woman being restricted by the burdens of pregnancy and child rearing, we must recognize that those burdens are bigger for younger girls. Teenage pregnancies can be so destructive to a girl's life. I don't think we want the government forcing children to have children. Let these girls decide to terminate their pregnancies so that they have the same chances at a normal life as everyone else.

Parental notification statutes should be subject to a higher scrutiny.

Good Catch, but

When are you going to put up the rest of the stuff we talked about the other day?

Do your edits and get it up!

Woot, sort of

Teddy Kennedy is on point in today's Washington Post.

He says,

The genius of their plan was obvious. If both the president and the Senate must agree on an appointment, there is a strong incentive to select people who can obtain a consensus in the nation and in the Senate. They spoke of the appointment power as a "joint" power, and that's what it's been for 218 years. "Joint" means cooperation and consultation and consensus. It means picking from a list of mainstream lawyers and judges who have demonstrated that they are dedicated to the Constitution and the rights it guarantees. It means avoiding candidates who would come to the court with personal, partisan or ideological agendas. It means ignoring the advice of those who prefer that the president pick fights with the Senate instead of picking judges with the Senate. It means taking seriously the "advice" part of "advice and consent" by sharing the names of prospective nominees with the leadership of both parties in the Senate, the Judiciary Committee, and other senators who will fairly reflect the balance of views in the Senate and the country.

and

The president should reject the pressure of the extreme factions of his party that want litmus tests for his nominee. This process shouldn't just be about whether the next justice would help roll back women's rights by overturning Roe v. Wade , the law of the land. It should be about something much more basic: protecting our core constitutional values for generations to come, the freedoms that we've fought for, bled for and died for. Because of Sandra Day O'Connor, the disabled are guaranteed access to our public courts. Teachers can't be fired for opposing discrimination against girls in our public schools. Patients can get a second opinion when an HMO tries to deny them care. Our water is cleaner and citizens can stop polluters who dump toxins into our waterways.

I like his characterization of the goal as "protecting our core constitutional values." That's great. It means sticking to precedent. It means protecting liberty in the 14th Amendment. It means maintaining our commerce clause doctrine.

Too bad the message had to come from Sen. Kennedy.

Don't Be

Such a defeatist crybaby.

Another side benefit of this is that as you have so aptly pointed out the major parties don't represent most americans. Which means we can use this issue to point out just how much the republicans do not represent most americans. Recently republicans have overreached on just about every issue. The Supreme Court nomination process only provides another chance for them to overreach. What is the possibility they actually will overreach? Very high, because of the fundamental nature of the Republicans.

In fact, Bush's speech today belies the type of overreaching the republicans will most likely attempt because Bush said that he wants a nominee confirmed before the next Court Session begins. This desire is underpinned by the assumption that O'Conner's resignation is effective immediately, which would only be nice if it were true. O'Conner explicitly said she is resigning as soon as her successor can be confirmed. So already you see that Bush is attempting to play mendacious semantic games to attempt to control the nomination process in the hopes of rushing someone like Scalia, or worse, through.

Furthermore, the republican party has a vision for america that is well outside the mainstream. Explicitly, they appear to want some type of pre-New Deal theocracy. The vast majority of americans don't want that type of government. However, within the Republican party, the ideologues demand action taken to impose their nutty vision of america on the rest of us, and if action isn't taken, the right explodes.

In this coming nomination fight, Bush will be placed between the wacky right and normal people. As the elections come ever closer, Senate republicans don't want to be put in a position of appearing to endorse the wacky right. This will be especially the case for Ohio Senator, and Judiciary Committe member, Mike DeWine who is up for reelection in 06. Given the current state of the Ohio Republican party and the current scandals in Ohio, DeWine could be ripe for a ton of pressure to break from his party. Now, I know NOTHING about Mike DeWine, he may not be in such a position, but if he isn't, we (meaning the Democrats) should put him there. Explicitly: Support the president and lose your seat, or support a moderate nominee and keep your seat.

I am sure this calculus of being able to cram a nutjob down the Senate's throat before the elections in an effort to get both the nutjob on the Court and to help protect the Senate Republicans from political fallout of approving said nutjob is driving Bush's stated desire to get a new Court member approved before the Court returns to session in October, despite the August recess.

This nomination fight also gives the Democrats a chance to move towards arguing for the type of inclusive representative democracy you spoke about earlier because the Constitution says that the president shall have the power "by and with the advice and consent of the Senate" to appoint Justices of the Supreme Court. Consequently, not only are we singularly situated to win an argument that "advice and consent" means real advice. We are also situated to argue that "the Senate" means the whole damn body, and not just the 55 person Republican majority. This was the argument we were beginning to make during the "nuculer" option crisis and that we were winning. Now, you are more familiar with political question doctrine than I am, and I mean the elements here, but I cannot see any court EVER interpreting Art. 2 Sec. 2 Clause 1. Which means that in this case, the Legislature, namely the Senate, and through their Senators, the people of this country, are going to get the opportunity to interpret what a section of the United States Constitution means.

Frankly, these are arguments we can win, we should win, and we must win.

Bah

We're boned.

That's pretty much my only thought right now.

There are a couple ways that this can turn out ok, though. First, if Rehnquist also steps down, at least we'll know what's at stake when it comes time to replace him. We need to fight for both spots, but if he retires, there is a certain flexibility in Dems ability to maintain the ideological balance of the court.

Second, and here's my fatalism: If Bush gets his ideological cronies on the court, then we might just see the constitutional crisis necessary for true reform to this country. When the Supreme Court tries to roll us back to 1791, the country won't stand for it, and we'll get some amendments out of it.

In light of recent events

I am going to hold off on responding to your posts about reforming the government. Also, I am just going to leave well enough alone in regards to your comments on TPMCafe, as I agree enough to not warrant further comment. I will briefly note that one thing I find particularly disgusting about TPMCafe is the air of haughty knowingness that pervades the discussion there. Yuck.

In your last post, you brought up Holmesian conceptions of democracy, but I instead want to focus on Holmesian conceptions of the law. I think it is imperative that the left begin to develop a legal philosophy that makes sense. I say this because I just turned off the CNN there and they were interviewing Robert Bork as to O'Conner's legacy. Bork said that she lacked a judicial philosophy and proceeded in typical right wing fascion (see it is "fashion, but looks like fascist, because that is what most of the modern right truly is, dang I am witty this morning. Really hungover, and dang witty!) to disparage Justice O'Conner's legal opinions. So in response to Bork, I thought it would be good to open up debate space on what is the a good counterweight to the right's, and specifically Bork's, "dead" constitution, originalistic philosophy. Naturally, given my predilection for good ol' OWH, I turned to his opinion in Missouri v. Holland. (just for you law nerds out there: 252 U.S. 416 (1920), although I don't have the pinpoint citation) In discussing the 10th amendment to the Constitution, Holmes states: "We must consider what this country has become in deciding what that amendment has reserved."

I think that lays a foundation for a modern left wing constitutional jurisprudence, except maybe change "amendment" to "constitution". I am also sure that many other people (read as "smarter" people) have arrived at this point and moved past it. However, I think your aforementioned "fetishization" of the constitution and the right's commitment to originalism shows that Holmes' point has not be political powerful, at least not recently. So I am proposing that we begin to discuss ways in which we can make this whole business politically viable. That said, I guess I will reluctantly put down the long desired read of the Central Asian history that I have, and dive headfirst into The Common Law. To paraphrase the Red Stripe advertisements: Hooray! Law!

Also: My predictions for the coming nomination fight(s)
First, I think it is highly likely that Renhquist will also retire soon. Which gives us 2 nominations to work with. Faced with 2 nominations, Bush is going to chortle with glee in that Roscoe P. Coltrane way, while Rove giggles on like Boss Hogg, except not cool. It needs to be stated outright to all national democratic party persons and our 2 maybe 3 readers:

YOU CANNOT TRUST THE REPUBLICAN LEADERSHIP OR WHITE HOUSE TO DEAL IN GOOD FAITH WITH YOU DURING THE COMING NOMINATION FIGHT.

That said, how will this proceed? How should the left proceed? Well, I heartly agree with Reid's proposal of a list of Republicans that the Democrats in the Senate will support for the high court. That said, don't expect Bush to pick one. Based solely on their track record, and his speech this morning, Bush will nominate whoever he wants and will not listen to ANY "advice" from the Senate, all the while DEMANDING the Senate's "consent". So Bush is going to nominate some nutjob. So in light of a likely Rehnquist resignation, how should we proceed? Give Bush a pass on one of his nutjobs, and fight the other one like hell, all the while proposing moderate republican or conservative democrats as alternatives that would make the fight "all just disappear."

We can win this. (and by win I mean preserve the current ideological balance of the court)