Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Wednesday, July 20, 2005


Dr. Strangelove points out this quote from Judge Roberts in the comments:

Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent.

I find this quote highly irrelevant to the issue. He was a lower court judge -- of course he had to uphold the law of the land! The question is, as a Supreme Court justice, would he vote to overturn Roe v. Wade? And the answer is almost certainly yes.
[w]e continue to believe that Roe was wrongly decided and should be overruled ... The Court’s conclusion in Roe that there is a fundamental right to an abortion ... finds no support in the text, structure, or history of the Constitution.

In my mind, it's very clear. If a chance to overturn Roe v. Wade comes up while he's on the bench, he will vote to overrule it. This is one thing about him that seems to be known, and it's why he's so popular with Bush's base.

I also want to make something else clear. I don't like abortions. It bugs me to think of wealthy childless married couples in their early 30's who abort because they couldn't bother to use birth control. That makes me sick. So I don't mind someone being opposed to abortion (and in Roberts' case, I tend to agree that nothing about abortion is in the Constitution).

If we're going to talk about his views on this issue, let's go deeper. Is he someone who thinks there is no right to privacy in general, or just no right to an abortion? Does he equate abortion to murder? Does he think that there should be no abortions in case of rape? Incest?

Look, there's going to be a lot of coverage about this issue. I think it serves the public better to learn more about his views on environmental issues, the Patriot Act/civil liberties, separation of Church and State, affirmative action, etc. Perhaps the members of The Citizens can do some digging and publish what they find.

Update: Let me clarify. I hope Roe v. Wade is not overturned -- I like that decision. I just don't think abortions should be handed out like candy on street corners.


Anonymous said...

Bell Curve, Bill Clinton once said (I think he coined the phrase but I could be wrong), "I want to make abortion safe, legal and rare."

I think your point about the broad issue of privacy in general is right on the money. I think that is where we should focus. My fear is that, like his mentor, Rehnquist, Roberts does not believe that there is any limit to the state's right to interfere with individual decisions, medical or otherwise.

Rehnquist seems only to oppose the power of the state when it confronts corporations (which are social organizations). I have no idea what the basis of his views are. I suspect he is a mean person who likes to kick puppies etc. 

// posted by Raised By Republicans

Dr. Strangelove said...

If I'm not mistaken, Bell Curve's second quote comes from a brief that Roberts filed when he was working as Principal Deputy Solicitor General in 1991. The paper certainly this represents the "party line" of the Bush I administration, but I am not sure one can assume it fully represent Roberts' personal views on the subject.

Nevertheless, Bell Curve is probably right in essence. I expect Roberts would vote to overturn Roe v. Wade. I just don't think that's a good enough reason to oppose his nomination--since you know darned well that even if the Democrats were to block it, Bush's next choice would be just as bad.

Anonymous said...

If there are Democrats out there looking for a silver lining, Andrew Sullivan points out that many conservatives are not happy with this pick  either. They think he might be another Souter. Any chance of that? 

// posted by Bell Curve

Dr. Strangelove said...

Bell Curve... you'd be hard pressed, I think, to find anyone who "likes" abortions or wants them "handed out like candy at street corners." And of course it bugs me that someone would allow themselves to conceive and unwanted pregnancy when contraceptives are widely available and socially acceptable. But there's a lot of things I don't like and social irresponsibility bugs me in most contexts.

Though pro-lifers like to phrase it otherwise, this is not a simple case where one side says abortions are "good" and the other says they are "bad." Nobody wants one. The legal question is under what circumstances is it allowed, and who gets to make the final choice. The practical question--since in the real world, abortion has been and always will be option--is what the social consequences will be to the woman, her family, and the surgeons who take that option.

Bell Curve... before you get annoyed (if it's not already too late!) and remind me that you support reproductive rights and need no lectures from me, please understand: I know this. It has just always bothered me when the pro-choice position is painted, intentionally or not, as advocacy for abortion--because pro-choice people don't advocate abortion. They just feel that in the end, provided the unborn child is still unable to surive outside the womb (or while no brain waves are yet detectable), the last word in this difficult decision should be the woman's, and society should not punish her for her painful choice, whatever it may be.

Bell Curve also said he agrees with Roberts that "nothing about abortion" is in the Constitution, but nevertheless, Bell Curve supports Roe v. Wade. I wholeheartedly with him. There is nothing in the Constitution about adoption or sperm banks or television, but we still must make decisions regarding the constitutionality of statues that regulate these.

As always we work by analogy, extrapolation, and an innate sense of fairness. We breathe life into the Constitution and make it relevant to the modern day. The Founding Fathers were clear that the Constitution was not meant to be a full enumeration of basic rights but merely a scaffold to buttress a few key pillars of that magnificent edifice of natural rights that shelters us from tyranny. [OK, that metaphor was a stretch].

I believe that anyone who does not have a stunted conception of liberty can raise his head and look through the scaffold to see many basic rights, such as the right of privacy, standing tall behind it. For those who see the Constitution as not just a description of limits to Federal power, but a declaration of fundamental human rights that any government should respect--the extension of these protections to the states via the fourteenth amendment seems almost superfluous.

Thanks for reading my rambling message.

Anonymous said...

Conservatives know that if they pretend to be unhappy, the press will say that Roberts is a moderate disliked by both sides. So they just pretend. Don't buy into it.  

// posted by LTG

Anonymous said...

Thank you, Dr. Strangelove for your elegantly worded defense of, and explanation for Pro-choice. I like the scaffolding analogy.

Bell Curve, my back raised slightly when I read "wealthy childless married couples in their early 30's who abort because they couldn't bother to use birth control."

I don't doubt that some cases can be characterized like this. But it always makes me a little sick when men are so righteous when it comes to abortions since it is definitely a different decision and experience with very different consequences for the woman who has to make that choice, just as childbirth is different for women than men.

Let's take a look at who actually gets abortions . They are unmarried women between the ages of 15-29 years old. 26% are below the poverty line and 31% are not surprisingly black (the two demographics tend to go together in this country). 31% earn between $30K-60K. 40% are white. 42.8% are Protestant as opposed to 24% who are Catholic. Thus, only part of your characterization of those who get abortions is correct.

And notice that when Right to life organizations use statistics, they do them cumulatively over 20 years, waving banners like "53 million abortions since 1973" (when Roe was decided! They never bother to take note that the number performed each year has decreased as the methods of birth control have improved.

// posted by USWest

Anonymous said...

I urge all of you to read the decision in Roe v. Wade  again (or for the first time, if you never have). It is a very sound and principled decision that tries to find a balance between the state's abstract interest in life, the state's interest in regulating for the sake of the health of the mother, and a woman's right of privacy to control in her own body. It traces the history of laws criminalizing abortion, and puts the lie to the charge that they are ancient or steeped in western civilization.

The usual statement of "thoughtful law professors" that Roe v. Wade is good law, but wrongly decided, is, I think, a wholly unjustified sop to the right. It is one of the best decisions ever to come out of the Supreme Court, as it matches judicial humility and (yes, humility) with a profound understanding of the meaning of liberty in our law.

It includes a cautionary phrase for right-wing jurists who wish to impose their views on the constitution:
"We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."

// posted by LTG

The Law Talking Guy said...

Another quote from the introduction to Roe:

"We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem."

The phrase "raw edges of human existence" alone makes this opinion a masterpiece of judicial reasoning. Blackmun was the rare judge who understood the fundamental problem with legal reasoning in its tendency to treat human beings as abstract bearers of rights and duties, rather than real beings with a full, large, and complex existence. Rarely have courts or laws ever tried to encounter our full multidimentionsal humanity.

Dr. Strangelove said...

"The raw edges of human existence" very nice. I like that a lot. Might be a good title for a novel too :-)