Redstate

No-doubt nominations EVERY time.  (No doubt in OUR minds, not just yours.)

Republican Presidents who fail to keep their promises harm the country tremendously.  

Gonzales = broken promise = major Republican defeat in 2006 = no progress on remaining Bush agenda.

Goal:  6 (YES, SIX) solid jurists.  We are at 3 heading toward 4.  No compromises or wild cards.  Deliver and you will prosper.  Compromise and we all will lose.

If Bush actually nominates a conservative.

Since Richard Nixon took office in January 1969, the Republicans have placed eleven justices on the Supreme Court.  The Democrats have placed just four.

Most of the Republican justices have been a disappointment.  Think of Blackmun, Stevens, Souter.... it's hard to imagine the Left being able to get leftists like that through the nominating process.  

It's shocking how much of the Left's gains on the Supreme Court have come from Republican justices who flamed left.  The Left never won these elections, it never had the right to have it's agenda implemented by these judges - but by a fluke of history, that's what happened.

Bush has a chance to finally start to correct that.

There are "conservative" judges and legal scholars that would say, even though Roe was wrongly decided, they wouldn't vote to overturn it anytime soon. At this point, seen from the public's point of view, overturning it (after 32 years) would look almost as arbitrary as the original 1973 decision. That's a view I heard in an interview with a law professor and I tend to believe that it's fairly common. I don't subscribe that view, but they would say, hey public, fix it like you fixed Prohibition. If it's that broken, you fix it.

My point is, if you're looking for Supreme Court nominees from the pool of "conservative" legal professionals, that are not just willing to overturn Roe, but eager to overturn Roe, you're probably down to two candidates on the list, maybe three.

Is there a particular reason why you think this is so? Are Republican Presidents just that bad at nominating the conservatives that they want? Or is it public influence? We always say the Courts should be isolated from politics and the electorate, yet demand that they be in tune with the public--which is becoming more and more political. This is quite a noticeable pattern, and I think that judges are applying the law as they see fit. Granted, I don't agree with many of the decisions they've made, but was it the intuition of the Nominator or the Nominee that is at fault here?

actually it's worse.  Since Nixon, the dems have appointed only 2-Ginsburg and Breyer.  where'd you get 4 from?

that the GOP wants to keep it a national issue.  So, GOP Presidents select nominees whom they know will not overturn Roe but for whom conservatives do all sorts of mental gymnastics to get themselves to believe that the nominee actually might overturn Roe.  Then, when the nominee turns out badly, the White House says it tried and conservatives back Republicans again knowing that Democrats will have a pro-Roe litmus test.

You're right that since 1969, it's 11-2.

I just don't buy that leading Republicans secretly want to preserve Roe.

The justices who votes for Roe also tend to vote for a lot of other things that most Republicans can't stand - like tossing out the pledge of allegiance, clamping down on any hint of religion in public life, creating a right to gay marriage, and preserving affirmative action.

I don't buy that overturning Roe will really damage the Republican party.  Once people see the issue simply go to the states, I predict a collective yawn, as the fights are settled and compromised locally.

Moreover, a lot of values voters will stick with Republicans.  The Republicans will still be fighting to restrict abortion at the state level.  Also, there will be other social issues pushed on us by the Left that conservatives will need to fight.

I don't think a lot of conservatives - lawyers or otherwise - think the way you're describing.

Conservatism is not just the knee-jerk preservation of the status quo.  Otherwise, wouldn't conservatives favor big government, abortion, affirmative action, etc.?  That's all status quo and has been for decades.  Wasn't communism around for a long time, too?  (Still is in some places.)

The argument that something has been around for a long time, so let's not change it, is often appealing to conservatives.  But not when that "something" is a knife in the heart of conservative values.

Sure, people have grown accustomed to abortion being available.  I got pretty accustomed to gas being 97 cents, too.  But the world changes, and people will change, too.  

To hear liberals (I'm not accusing you of being one) use the "settled expectations" argument is just ludicrous.  Just in the last year, the Supreme Court overturned Bowers v. Hardwick, the 20 year old sodomy case, and banned the death penalty for 16 and 17 years olds.  I didn't hear any modesty from the Left saying those fases were wrongly decided, did you?

Lochner and Plessy were also around for a long, long time, and when change came, it came quickly, and people reset their expectations.

I agree with you that the "settled expectations" argument is pathetic.  If you know Roe is wrongly decided, I think as a judge on the Supreme Court you have a duty to overturn it.  That said, I don't think change would come easily by any means.

I hope your analogy to desegregation is not apt.  Plessy was around for a long time and change came pretty quickly, but it took a long time for people to reset their expectations.  The Brown decision led to huge national strife, including troops in the South to enforce it. Not exactly a smooth transition.

When you say the issue will "go to the states," how do you factor in the notion that Congress has been legislating on abortion for years?

Most notable, of course, is the partial-birth abortion ban, which has been struck down in the courts over the health exception issue.  But no court has yet suggested that the ban might exceed Congress' power under the Commerce Clause.

I'm not sure why you believe Congress would simply pass the buck on this issue if Roe were overturned.

In the 1960's and early 1970's Democrats controlled the Senate and rejected several nominees they viewed as too conservative. I can't remember if they controlled the Senate when Bork was nominated but they were probably a big reason why the Reagan administration, weakened by other issues, chose Kennedy.

If Republicans had controlled the Senate in the 1960's and in the late 1980's the Court would be much different today.

Since Richard Nixon took office in January 1969, the Republicans have placed eleven justices on the Supreme Court.  The Democrats have placed just [two].

Which was the majority party in the Senate when each of those 13 justices were nominated? Didn't Nixon, Ford, Reagan, and Bush pere have to deal with a Democrat dominated Senate?

This is one reason that Bush ought to nominate a judge with stellar conservative credentials. Who knows when the next time a Republican president will get to nominate a justice and have him/her confirmed by a Republican Senate? (And Senator Specter had better behave himself. I don't like the noises he has been making this week.)

See below.

I don't think there's a clear majority in either party (particularly with the filibuster in the Senate) for either restrictive abortion laws or permissive abortion laws.

The most I would expect out of a Republican Congress would be a ban on abortions after the first trimester.  I don't expect a Democratic congress would be able to pass anything approaching the Roe regime, either (i.e., abortion on demand, pretty much whenever you want it.)

Republicans controlled the Senate for 6 years under Reagan, from 1980 to 1986.  That got us O'Connor and Scalia.

One out of two ain't so hot when you're talking the Supreme Court.

My point is that the Republicans also - in a collosal error - got us Blackmun, Stevens, and Souter.  (Let's hope Kennedy redeems himself a little - don't want to add him to that list.)  It's not like Blackmun, Stevens, and Souter are even moderate in the mold of an O'Connor - these guys are clearly on the left.

If the worst the Republicans ever gave us is O'Connor, I could live with that, so long as they also gave us some solid conservatives.  Maybe 40% of them time (school vouchers, property rights) she voted with us on social issues.

the point is that I think it will continue to be a very visible issue at the federal level.  I just don't share the vision of a nation where Oklahoma votes to ban abortion, California votes to keep it legal, and everyone just goes about their business with this issue finally off the table.  As long as there is the possibility of passing new laws or overturning existing ones, I can't imagine how abortion will stop being a significant issue at either the state or federal level.

I don't think any truly conservative justice would hesitate for a moment to overturn Roe v. Wade, when the appropriate case came before him.  But at the same time, we need to remember what Judge (soon to be Chief Justice) Roberts said about a judge being "modest" in his treatment of precedent.

This is what I think he meant by that:  (1) you don't go out of your way to overturn a case that provides precedent on a subject, (2) you normally decide a case on the narrowest grounds possible, and (3) you only explicitly overturn a precedent when the case before you demands it.

So, I don't necessarily see an immediate reversal of Roe in the next year or so, even if we get 5 conservative judges.  Instead, the court will rule in favor of pro-life legislation, and say something like, "We uphold this legislation because it doesn't 'unduly burden' a right to abortion, to the extent one exists.  Because we don't need to overturn Roe to rule in favor, we will save that question for another day."  

Best case scenario in the coming year is overruling Doe (Roe's companion case, saying there has to be an exception for the "health" of the mother, not just for the "life" of the mother).  After 3 or 4 cases where SCOTUS begins to chip away at the edges of Roe, some states will get more ambitous in passing laws prohibiting abortion (for example) after 20 weeks, except to save the life of the mother.  It won't be until a case like that comes along that the SCOTUS will explicitly overrule Roe.  That's what I think Roberts meant by being "modest." (IMHO)

I'm going with Garza(1) or Estrada(2). Either one should excite the republican base & the  Hispanic population in general. They are both excellent candidates. We'll see soon.  Any thoughts from others on my picks?

So, a Republican president with a Republican Senate got us Scalia and O'Connor. That's 1½ out of 2. Could have been better, but not so bad. The point remains that the other nine Republican appointees had to survive confirmation by a Democrat controlled Senate. We saw what they did to Bork, and tried to do to Thomas. So I wouldn't lay all of the blame for Blackmun, Stevens and Souter on the respective presidents.

We'll see.

The problem was not the Democrat-controlled Senate, it was insufficient and sloppy vetting by White House staff.  The White House thought it was getting a conservative - they didn't nominate these three with the thought that only a liberal could get by the Senate.  Of course a Democrat-controlled Senate would vote to confirm a liberal justice.  But the Republicans just had no idea that's what they were nominating.

It's not like the Left knew that Souter would turn out to be Souter - they said the same boilerplate stuff (anti-woman, etc.) about him as they said about Roberts.

The problem was that the White House failed to do its homework and figure out what Souter really thought.

I agree it abortion will continue to be a significant issue at the state level after Roe is overturned.  But at the federal legislative level?  Unlikely.  

How will any meaningful legislation in either direction pass both houses of Congress with the Senate filibuster rule in place?

Personally, if the issue is left to the states, that's fine with me.  Same with the death penalty and other issues.

The partial-birth abortion ban wasn't filibustered in the Senate, as far as I know.  Why would it be filibustered now?

Anyway, just because the filibuster exists, that hardly means that no one will try.  If the public is on board with a particular abortion restriction, why wouldn't it be good politically strategy for the GOP to force the Dems to filibuster it?  Why wouldn't this give both sides ammunition to campaign for a filibuster-proof majority?

Again, I'm not just theorizing here.  You have to deal with the established fact that the GOP Congress has been passing abortion restrictions for several years now.  There's no reason to think that a reversal of Roe would cause them to stop rather than press forward.  And if the Democrats regain a majority, nothing stops them from trying to push through some kind of "Federal Access to Abortion Act."

If you go back a couple decades, you find that Republicans were much more in favor of federalism and leaving issues up to the states when they were out of power on the federal level.  Now that they have the federal power, why not use it?  And by the same token, the Democrats who used to deal with everything on the federal level now look at issues like gay marriage and say gosh, why don't we leave that up to the states.  It's easy to argue for leaving something up to the states when you have no power to resolve it federally!

I don't see any reason to think that the genie of federal abortion legislation will ever be put back in the bottle.

I don't think we actually disagree - it just seems like we do.

My point was that the Republican Congress post-Roe isn't going to pass a law saying, for example, that abortion is illegal except in cases of rape, incest, or threat to the life of the mother.  Mark my words, you will not see such a law from a Republican Congress - there just aren't enough votes for it.  At most, in view, you'd get a law limiting abortions to the first trimester.  Keep in mind that there are more than a half-dozen pro-choice Republican senators.

Nor will the Democrats, if they control Congress in a post-Roe world, pass a law essentially allowing carte blanche abortions - like we have today under Roe.  There isn't enough support for that, either.

Roe has frozen in place an abortion regime which is out of alignment with the actual political support for abortion.  American political views are more to the right on abortion than reflected in the extremely liberal Roe regime.  However, that's not to say that there's enough support to functionally ban all truly elective abortions in this country.

The Senate votes on fringe issues like the partial-birth abortion ban (and the lack of a filibuster) doesn't reflect how a real abortion ban would go down in the Congress.  Partial-birth abortion is anathema even to some otherwise pro-choice Democrats.  However, those Dems (and some Republicans) would vote differently on different issues.

That's why I think the issue of banning truly elective abortions (not involving rape, incest, or life of the mother) will be resolved at the state level.  And even there, my guess is that far less than half of the states will take that step.

...the exact same set of judges who are going to strike down Roe are going to strike down such a law.

What is the enumerated federal power that would allow Congress to pass such a law?

The 5th amendment requires due process of law for a life to be taken. State death sentences are entitled to fed ct review. Schiavo concerned some of these issues.

i'll look into this

what do you think?

No federal court to review the Partial-Birth Abortion Ban Act has even suggested that it exceeds Congress' powers under the Commerce Clause.  The argument is so meritless that it does not appear to have even been raised in any of the federal cases.

People who argue that federal abortion laws will be struck down for reasons of federalism are typically arguing based on how they think the Commerce Clause SHOULD be interpreted, not how it is interpreted.  The Supreme Court is a long, long way from issuing such a ruling.

enumerated federal power?

hahahahahahahahahahahahahahahahaha....

that's a good one.

ever heard of the limitless commerce clause?  after abortion, that is the second concern of Specter and the liberal Dems who questioned Roberts.  God forbid there is some limit on Congressional power - in their minds, everything can be interstate commerce, and thus regulable by Congress!

I'll be curious to see if their tune changes if an abortion restriction is passed based on the Commerce Clause.  After all, the provision of abortions (under the liberals' theory) surely affects interstate commerce.

Such a restriction already exists - it is called the Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105, 117 Stat. 1201 (codified at 18 U.S.C. § 1531).  For some reason, this isn't coming across.  You are all talking as if federal legislation in this area is some fanciful idea that won't even be discussed until the day Roe is overturned.

The judges who are most likely to read the Commerce Clause in the manner I am suggesting are the same ones that are likely to strike down Roe.

Do you plan to appoint 9 new Justices?  It will take 1 or 2 more votes to overturn Roe.  That will not be sufficient to enshrine a whole new vision of the Commerce Clause.  There are many judges who disagree with Roe but would not rewrite 60 years of Commerce Clause jurisprudence.

The argument that the Partial-Birth Abortion Ban Act exceeds Congress' authority is so frivolous under existing law, the litigants who have been challenging that law have not even been making it.

I'm not sure of the const basis the present fed law is grounded on, but the reversal of Roe would remove the restrictive definition of "persons", hence:

Amendment V

No person shall...be deprived of life...without due process of law...

by the Sup Ct on grounds of no exception for "health" of the mother under Roe and actually more specifically Doe v Bolton?

A ruling that a fetus is a "person" entitled to due process would be a step beyond simply reversing Roe.  Reversing Roe just means that a woman's interest in making the abortion decision is no longer a protected constitutional right, so legislatures can do what they want.

In answer to your question above, yes, the court cases involving the state and federal partial-birth abortion bans have all been about the health exception.  The SC struck down a Nebraska statute because it didn't contain a health exception; Congress tried to address this by enacting a nationwide ban including findings that the woman's health is never at issue, therefore a health exception isn't necessary.  Several federal courts have disagreed with Congress and struck down the federal ban; the White House is now asking the SC to take the case, and it probably will.

But the point I've been making in these posts is that the litigants challenging the federal law haven't even tried to make the argument that Congress simply doesn't have the power to enact abortion laws.  Unless there's a radical change in the makeup of the Supreme Court and its views on federalism, that argument is going to remain a nonstarter.

Okay, well two of them are gone, so it's not a great example, but at the time that represented two out of three votes against Casey.  So, I don't think it's a stretch to say that people who are textualists or originalists on questions of privacy are also likely to be textualists or originalists on questions of federal power.  On the other hand, imagining that the opposite is true seems a little...optimistic to me.

fetuses. Is the Commerce clause rationale that abortions affect interstate commerce?

There are other aspects of abortion regulation that very clearly relate to interstate commerce, such as travelling interstate to obtain one.  In fact, I could have sworn that Congress was kicking around just such a law earlier this year.

I'm well aware of the Commerce Clause basis for the partial birth abortion law and tons of others Congress has passed - many of which having nothing at all to do with interstate commerce in any real sense.

My point is that in a post-Roe world, if Congress passes some real restrictions on abortion, don't be surprised to see a Commerce Clause attack on the laws in the courts.  And heck, why not - it might work.  The Rehnquist court did issue a few decisions striking down acts of Congress on Commerce Clause grounds.  Admittedly, it's a real stretch, but you never know.

scalia split with Thomas on the pot case to resort to stare decisis, so ...

Heck, if the commerce cases didn't exist though, for a lot of reasons we would ahve to legislate it!

I agree that a Robert Bork would both reverse Roe v. Wade and rule that the federal government had no business regulating abortion.  But in the real world:

1. A Republican President with a Republican Congress will have little incentive to nominate a Justice who will place substantial limits on their power.
   
2. The base cares a lot more about restricting abortion than they do about some abstract concept of federalism!