Defending Choice: Why It Is Good Politics
As the chickens came home to roost with Justice Alito casting the deciding vote today in the SCOTUS' upholding of a federal ban on a pregnancy termination procedure used primarily late in the pregnancy term, I thought I would trot out a post I wrote on the politics of choice, when the Alito nomination was pending.
The post:
Just as in every other Supreme Court nomination, the ScAlito nomination has at its center the issue of Roe v. Wade. Many other issues of course are always significant, but Roe is the touchstone. Inevitably, at least here, the arguments lead to whether it is "good politics" for Dems to support Roe. Of course, for many if not most of us, politics simply won't be a consideration on the issue. But I also think these folks are wrong to argue that Dems should retreat on Roe.
As already suggested, though, my concerns about Roe, and whether the Democratic Party should continue to expend a great deal of political capital on keeping it on the books, have less to do with specifically legal concerns--i.e., what constitutes the best interpretation of the Constitution?--and far more to do with the politics of the abortion issue in 2005 and beyond. I am increasingly persuaded that the principal beneficiary of the current struggle to maintain Roe is the Republican Party. Indeed, I have often referred to Roe as "the gift that keeps on giving" inasmuch as it has served to send many good, decent, committed largely (though certainly not exclusively) working-class voters into the arms of a party that works systematically against their material interests but is willing to pander to their serious value commitment to a "right to life." . .. [P]rofessional politicians are well aware that most of the country in fact supports the clumsy compromises stumbled into over the past 30 years, largely through the aegis of Sandra Day O'Connor.From a crass political perspective--i.e., a concern with electoral success--the best thing that could happen to the Democratic Party is the overruling of Roe and the full "politicization" of abortion. Confirmation of this view was recently provided by Rep. Thomas M. Davis III, a Virginia Republican, who told a breakfast hosted by the Christian Science Monitor that the overturning of Roe would likely produce "a sea change in suburban voting patterns." He is almost certainly correct.
This is the standard "why Roe helps the Republicans argument, and, as far as it goes, it has its logic. But it is wrong. Most have seen the many renderings of my Politics of Contrast/Lincoln 1860/Fighting Dems strategy. This is, as you no doubt would expect, central to my argument.
I think Jack Balkin's response to Levinson hints at why it is wrong but doesn't go the full distance:
[T]his fails to account for how Roe would be overruled in practice. Imagine how one would "give up." You can't send secret signals to the liberal justices saying "psst, hey Ruth Bader Ginsburg, take a fall on the next abortion case." Rather, giving up on Roe means not opposing new Republican judicial nominees who are committed to overturning Roe (as opposed to merely limiting it). But those sorts of judges will likely oppose much of the other existing jurisprudence on sexual autonomy. The opinions they write will likely emphasize that it is wholly illegitimate for courts to discover and enforce rights not specifically enumerated in the Constitution (unless, of course, it's unenumerated rights that conservatives happen to like! See the federalism decisions). Whether or not cases like Lawrence are technically distinguishable by well-trained lawyers, they may not be distinguishable in the view of the new Supreme Court majority.It gets worse. The same sorts of nominees who are ready to overrule Roe today (i.e., people like Clarence Thomas and Antonin Scalia) are also going to vote against a large number of other constitutional rights that Democrats and liberals care deeply about. Giving up on Roe means giving up on those rights as well; or to put it another way, whether a Republican nominee seeks to overturn Roe is a good proxy for that nominee's positions on a wide range of other constitutional questions.
And that's not all. Mark Graber has pointed out that constitutional questions often get settled when one side gives up. Similarly, Bruce Ackerman argues that this is when important "constitutional moments" occur. Giving up on Roe means that Democrats would be in the same position as Republican critics of the New Deal in 1940, or Andrew Johnson, who opposed the Fourteenth Amendment, in 1868. This time we progressives would be performing the "switch in time," capitulating to conservative ideas about what the Constitution means. Roe would enter what Sandy and I call the "anti-canon"; it would become the canonical example of how one shouldn't decide constitutional cases. Roe would become the modern day analogue of Dred Scott and Lochner v. New York and Plessy v. Ferguson and Adkins v. Children's Hospital--the key cases that law professors teach their students were wrong, perhaps even "wrong the day they were decided." Many of Roe's most vocal opponents currently believe this, but most people in the country, thankfully, do not. Now imagine a constitutional culture in which Roe is generally agreed to be just like Plessy or Dred Scott, where it is generally seen as the modern canonical case of bad constitutional decision making. Do you really think that in such a culture other rights and other decisions that Democrats and liberals care about would be safe? Do you really think that Roe v. Wade is that isolated from the matrix of concerns at the heart of the progressive agenda
What is Balkin saying here? Simple. It requires an extreme judge fully out of the mainstream to overturn Roe. And such a judge will not be extreme just on Roe. He'll be extreme on Griswold. Extreme on the Commerce Clause. Extreme on Separation of Church and State. Extreme on the Fourth Amendment.
Who were the Justices who recently voted for overturning Roe? Scalia. Thomas. Rehnquist. That is the type of Justice who wants to overturn Roe.
But so what? you say. What does that have to do with the politics of Roe? This, Democrats can only be the Rational Party, the Moderate Party, the Sane Party if they stand firmly against the extremists. Given the feeling of the American People that Democrats don't stand for much imagine what they will think if Dems stop fighting for the right to privacy! Why then would a moderate voter look to Dems to protect them against the Extremism of the Republican Party?
In short, to give up on Roe is to throw away any notion the American People have left that Dems stand for anything. It is to rip apart the progressive wing of the Party and fracture Democrats in a way that was last seen when the civil rights laws were passed.
See, we have already had our split on privacy and abortion . Single issue anti-choice voters are Republicans. And they will never be anything else. The mistake that is made by Levinson is to assume that by putting abortion rights in play in the legislative arena this will automatically deliver all pro-choice voters to the Democrats. NOT IF THE DEMS ARE COMPLICIT IN DESTROYING THE WOMEN"S RIGHT TO CHOOSE! They will flock to those who will protect what they value. Dems giving up on Roe destroys the idea of Dems as protectors of women's rights. Those voters who suddenly find that the right to choose is in jeopardy are not likely to run to Democrats just as voters in 1856 and 1860 did not run to the Whigs and other politicians who sold out on slavery.
So let's consider the probable political effect of a Dem cavein on Roe -- (1) complete alienation of the progressive wing of the Party - bad. (2) Laws banning abortion in the South and other Red States - neutral for Dems politically. (3) No such laws in Blue States where Republicans will be permitted to be pro-choice - neutral for Dems.
Where's the big uptick for Dems? Only one scenario provides it - a Republican push for a federal law banning abortion. Blue states will recoil from this. Guess what? Dems HAVE THAT OPPORTUNITY NOW! Why are we not using the Politics of Contrast now!
Indeed, if the "give up on Roe scenario is played out, we will not have that opportuniy afterwards! The fight is now. The contrast is now.
Fighting for Roe now is good politics as well as the right thing to do.
NOT fighting for Roe now is disastrous politics and the wrong thing to do. As Eugene at My Left Wing has said, it is the policy of the Whig Party, circa 1854. and we all know how that ended for the Whigs.
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