Rudy Hearts Right-Wing Judges

Rudy Giuliani spent yesterday stumping in Iowa -- not his usual territory. Along the way, he made it quite clear that he intends to govern from the far right. Besides his continued support for a disastrous and deeply unpopular war, besides his opposition to the kind of universal health care favored by a huge majority of Americans, there's his commitment to nominating extremist judges.

That commitment was his primary message yesterday, as he heaped praise on the current Supreme Court's right wing, and insisted that while "the abortion question is not a litmus test," he would only name "strict constructionists" to the Court.

In the speech, he went out of his way to praise the four most conservative members of the current U.S. Supreme Court - Justices Antonin Scalia and Clarence Thomas, and two nominees of President Bush, Chief Justice John Roberts and Justice Samuel Alito.

"These are the kinds of judges I would appoint," he said, calling them "strict constructionists" who interpret, rather than rewrite, the U.S. Constitution.

The term "strict constructionists" is often used by religious conservatives who say they want judges who will overturn, among other past decisions, the landmark abortion rights ruling Roe vs. Wade.

Religious conservatives may or may not find Rudy's words convincing. But ordinary Americans should be alarmed by it. Following his appointment of a group of hard-right judicial policy advisors, Giuliani's rhetoric in Iowa suggests that he is putting his promise to appoint ultra-conservative judges at the center of his campaign. PFAW's Right Wing Watch sees what's happening:

Giuliani may not be the Right’s favorite candidate, but with no clear front-runner emerging, he appears to be seeking to position himself as the candidate most committed to fundamentally and lastingly shifting the balance on the Supreme Court in favor of the Right – a temptation he hopes just might be enough to weaken the resolve of even his most hardened right-wing foes.

There is no such thing as Rudy Giuliani the moderate.

Cross-posted at The Right's Field.

Labels: 2008, Presidential election, Rudy Giuliani, Supreme Court

  ¶ Posted by Paul Curtis 10:40 AM 0 comments

  Still Punching in the Court Fight

Conservative judicial activist Kenneth Blackwell takes to takes to the New York Sun today to argue that conservatives should not rest on their laurels after their recent string of 5-4 victories in the Supreme Court. I'm always impressed by how right-wing writers are able to strike such a consistently victimized, even apocalyptic, tone when they discuss the courts -- as though they are always, even when they win, just holding out on some judicial Masada, waiting for the activist liberal judges to overrun the last bastions of God-fearing, "originalist" jurisprudence.

Blackwell looks at Hein v. Freedom From Religion Foundation, in which the Court sharply limited taxpayer standing to sue over violations of the Establishment Clause. Panda's Thumb has a good explanation of the decision, which narrowed the scope of, but did not overturn, Flast v. Cohen -- the decision that affirmed such standing to begin with. Roberts's Court ruled that Flast does not apply in cases where Congress does not make a specific decision to use tax money to support religious institutions, but instead gives the funds to the executive branch in lump sums, leaving it to the administration to decide how to distribute the money. In fact, the decision was muddled, with Roberts claiming that he was not overturning Flast's precedent, while Scalia criticized Roberts for the hair-splitting. The efforts at nuance leave Blackwell cold, too: he argues that Hein "showed that this is no longer a liberal court, but neither is it a conservative one":

Conservatives should consider Hein both a victory and a missed opportunity. The fact that Flast was not expanded means what would have been a whole new line of attack by the Left against churches and ministries has been stopped. But the fact that Flast was not overturned means that all the current attacks will continue until such a time when one more conservative justice is confirmed to the Supreme Court.

Hein shows that conservatives have gotten halfway to the Court they desire, but are most definitely not there yet. Conservatives can celebrate, but they need to double their efforts in the 2008 elections.

Blackwell warns that liberals will be politically energized by the latest string of decisions, while conservatives might be tempted to let down their guard. Given the immense investments of time, resources, and spin that right-wing judicial activists like Blackwell have made in taking control of the courts, it's hardly surprising that he should insist on keeping up the fight. Is his op-ed a sign of the conservative rhetoric to come during the 2008 electoral cycle?

Labels: Kenneth Blackwell, Supreme Court

  ¶ Posted by Paul Curtis 11:09 AM 0 comments

  Dealing with the Supremes

Over at The Third Estate, Arbitrista looks at the Supreme Court mess -- highlighted by a week of awful 5-4 decisions -- and ponders what to do about it all. As he points out:

No matter what kind of political majorities Democrats are able to build in the next dozen years, no matter what sort of policies we manage to enact to reverse the disastrous course of the last seven (or twenty-seven) years, the right-wing Court will be there to stop us. It is the Supreme Court, not Iraq, that is George Bush's ultimate legacy.

While it was Bush who appointed Roberts and Alito, the coming era of right-wing jurisprudence isn't just his legacy, it's the legacy of almost half a century of conservative movement-building. The courts are the ultimate trailing indicator in American politics; seeds that are planted at the grassroots level of electoral politics will bear judiciary fruit decades later. The right's rhetoric in recent years, often so intensely focused on the courts, well-constructed and full of frustration, is testimony to this. The courts were the last bastion of the mainstream world to fall to the movement's forces; even in a right-wing era, years after the Reagan and Gingrich ascendancies, the judiciary branch refused to succumb, because change comes so glacially there.

All of which makes some of Arbitrista's recommendations even more striking:

A less extreme version of the strategy of confrontation would be to apply public pressure - congressional censures, public protests, and most particularly making the Courts and their decisions an explicit political issue. The Democrats in the next Presidential campaign should highlight these decisions, which if they were well-known would be extremely unpopular with the general public. No Supreme Court justice, and most especially not Anthony Kennedy, wants to see the Supreme Court become an issue in electoral campaigns. I believe that making Supreme Court decisions a major element in the campaign would also help Democrat electorally, since it could force the campaign to be much more substantive. The last thing the Republicans want to talk about is repealing environmental laws or gutting civil liberties.

Now some would say that we should not politicize the Courts. To which I respond - the Courts are already politicized. The days of moderate judges who invoke careful legal reasoning drawn from precedent is over. The Court is now ruled by the same clique that we just toppled from power in the Congress and that has drawn Bush down to 26% in the polls.

This, then, would be a liberal version of the very same strategy conservatives have pursued over the years. It wouldn't necessarily be unprecedented for the left, either -- FDR's court-packing scheme might have failed in its immediate objective, but it accomplished his larger purpose, which was to rally political pressure to get a conservative court -- again, a holdover from another kind of era -- to stop obstructing the New Deal. And it's not just about pressuring the courts directly; you also use the unpopularity of their decisions to motivate your base to get you elected so eventually you can appoint the judges.

Being as liberals are meant to value objectivity, fairness, and consensus, a strategy of politically pressuring the courts will be controversial, and I won't address the philosophical merits of the idea here. But history does tell us that ultimately it would be likely to work.

Labels: Supreme Court, The Third Estate

  ¶ Posted by Paul Curtis 11:55 AM 3 comments

  What's Next for the Anti-Choicers?

Couldn't post yesterday, which was almost a blessing because I wouldn't have known where to start if I did. This blog is deliberately non-newsy, focused more on underlying histories and trends in the conservative movement, with some running commentary on the GOP horse race thrown in. But sometimes the news is impossible to ignore.

Yesterday's big story, of course, was the Supreme Court's ruling on so-called "partial-birth abortion." You'll find far better legal, medical, and philosophical analysis at other sites - I'll limit my own contributions to a brief look at where this ruling fits in the larger scheme of things for conservatives.

For Michael J. New, writing at the National Review, the lesson is that "incrementalism works" as an anti-choice strategy:

The ruling is a good indication pro-lifers would do well to continue this strategy of incrementalism in the future.

Indeed Wednesday’s decision was made possible by pro-lifers whose hard work resulted in a Congress, a president, and a Judiciary who were all supportive of the partial-birth-abortion ban. This decision builds on the Casey v. Planned Parenthood decision, argued almost exactly 15 years ago. Casey strengthened constitutional protection for public-funding bans, parental-involvement laws, waiting periods, and informed-consent laws. The Supreme Court’s decision on Wednesday extends constitutional protection to yet another piece of pro-life legislation.

In New's analysis, the incremental strategy succeeds because it allows the the anti-choice movement to establish fresh narratives drawn from the margins of the abortion debate, where public opinion is less settled and therefore more susceptible to the "pro-life" line. It's a sort of bait-and-switch approach, which seeks to center unusual procedures like "partial birth abortion" as the symbolic face of the debate: defining the norm according to the extreme.

[I]ncremental legislation often serves an important informational purpose. Many people pay little attention to politics and are unaware of the permissive polices the United States has regarding abortion. Many do not know that in many states a minor can obtain an abortion with out her parents’ knowledge. Furthermore, many do not know that a woman can obtain a legal abortion during her ninth month of pregnancy. As such, it is undeniable that the national campaign to end partial-birth abortion gained a considerable amount of publicity and was effective in moving the general public toward a more pro-life direction.

As New observes, the incremental strategy has only recently achieved a degree of consensus among anti-choicers:

While this may seem relatively uncontroversial in pro-life circles today, the battle between incrementalists and purists at one point was extremely divisive. Many pro-lifers are too young to remember the bitter battles within the pro-life movement during the late 1970s and the early 1980s about the best way to design a human-life amendment.

Now by the mid 1980s most pro-lifers realized that a constitutional amendment was not a realistic short term political goal. As such, the strategy of most pro-life groups shifted toward changing the Supreme Court. This enjoyed somewhat broader support and tensions cooled somewhat. However, it is possible that a reversal of Roe v. Wade could reignite these tensions. Legislators may be called to dismiss incremental legislation in favor of politically infeasible laws that would eliminate abortion entirely.

This is the other trend lurking within the movement; it has been manifested in moments of overreach like the South Dakota abortion ban and even the failed attempt to impose forced sonography in South Carolina. The incremental approach requires a great deal of discipline - all the more so, one would think, as it begins to succeed. With each victory, anti-choice extremists will be tempted to see the endgame on the horizon, and to break ranks in pursuit of it. This, as New seems to realize, threatens to undo the movement altogether. "The pro-life movement would do well to remain united," he argues, pointing out that in a broad sense abortion rights have gained durable public support since Roe. It remains unrealistic for anti-choicers to anticipate overturning that consensus - but they can keep chipping away at the margins, through "parental-involvement laws, waiting periods, and informed-consent laws." In this analysis, things are going the anti-abortion movement's way, but only if they don't go too far.

Ed Whelan, of the conservative Ethics and Public Policy Center, is downright enthusiastic about the possibilities of the incremental strategy in the wake of yesterday's decision. Writing at USA Today, he calls for an ambitious series of next steps:

Americans now have the green light to enact state partial-birth bans modeled on the federal ban. Legislatures should also pursue more robust informed-consent rules on, for example, ultrasound imaging and fetal pain.

In contrast to New, who seemed to focus on gradually changing the terms of the debate and actually trying to reduce the number of abortions (however mistaken his analysis), Whelan seems to see an opportunity to regulate abortion out of existence. Licking his chops at the prospects of "further improvements in the court's makeup," Whelan sounds very much like one of those reluctant incrementalists who, having had a taste of blood, is anxious to surge forward - discipline be damned.

The editors of the Wall Street Journal, on the other hand, are far more cautious. "Yesterday's abortion ruling," they say, "was only a baby step."

Not only did the Court not overrule its Roe and Casey decisions, it didn't even overrule Stenberg v. Carhart, the 2000 decision that overturned a Nebraska law banning partial-birth abortion. Instead, Justice Anthony Kennedy upheld the 2003 Congressional ban because he said it was more narrowly drawn. "The Act makes the distinction the Nebraska statute failed to draw," he wrote, "by differentiating between the overall partial-birth abortion and the distinct overt act that kills the fetus."

[...]

Justice Kennedy had been a dissenter in Stenberg, so changing his position would have been a little too protean even for him. The fact that he wasn't willing to overturn even Stenberg suggests that this Court is not in the mood for sweeping reversals of precedent. As for Messrs. Roberts and Alito, the Court's opinion also gives no clue about how many abortion precedents they might be willing to overturn. The Court has shown a very modest new deference to the will of the voters on abortion, but no more.

What this does represent, to the Journal's editors, is a chance to debate an abortion-related issue in state legislatures. The issue itself might be a narrow one, but it's a sort of rehearsal for the large-scale shift that "respectable" conservatives want to achieve: by overturning Roe and Casey, they intend to make abortion policy a question for state politicians to decide. You have to admire how neatly this dovetails with the entire conservative history of disingenuous federalism: we all know by now what support for "state's rights" really says about one's opinion on civil rights.

At any rate, the editors are not wrong about one thing: "Americans are ambivalent about abortion, with a majority wanting it to be legal but also rarer than it is now." Yesterday's ruling happened because enough Democrats were willing to sign onto a law that dealt with a very marginal aspect of the abortion debate. I'm certainly no expert on the politics of abortion, but one thing seems to be getting clearer: the heart of the matter now rests on the question of reducing abortions, one way or another. The central dilemma for anti-choicers - the fact that most Americans support legal abortion in principle - is not going away. Serious anti-abortion activists are turning to an incrementalist strategy, but the question is whether they will be able to maintain the discipline to keep it up. Meanwhile, the pro-choice movement has the opportunity to exploit the very same context - ambivilent but broad support for abortion rights - in a different way, by taking up a prevention-first strategy. There are two strategies here, almost mirror images of each other, but aimed at very different goals.

Labels: abortion, Supreme Court

  ¶ Posted by Paul Curtis 11:04 AM 2 comments

  Notes from the Summit - Ed Whelan on Judges

Part Three of the Summit report will be up this afternoon - getting it ready now. Meanwhile, here's some courts-related stuff I haven't mentioned yet, from Ed Whelan.

Whelan is the President of the Ethics and Public Policy Center, and he posts on the "Bench Memos" blog at NRO (he's also a former clerk to Scalia). He spoke in the Saturday afternoon social conservative panel, and I didn't cover his remarks below, but some of it is noteworthy.

First, he aggressively repeats the conservative framing of the judicial fight: "The courts have been the primary aggressors in the judicial wars."

"A major goal here," he says, "has to be to get the courts out of the way." The two main strategies:

1. Winning on judicial appointments


2. "Responsible but vigorous criticism" (read: political harassment) of "activist judges."

If there's a vacancy on the Supreme Court, Whelan argues, there's "plenty of room" to get a conservative in. "Don't be timid," he urges the audience.


Whelan says the two major lessons of the recent judicial wars are:

1. "Quality matters." No more Harriet Miers-es.


2. "The public prefers judicial restraint to judicial activism."

Liberals really have to do a better job in the framing on this. "Judicial activism" is a poisonous phrase and we've done little or nothing to combat it.



Republicans must insist on up-or-down votes on judicial nominees, Whelan tells us. They only need peel off a few Democratic (or "Independent Democratic") Senators to win floor fights.


Whelan: "It is critical to win in 2008 with a candidate who will make strong judicial appointments." Whoever is elected in '08 could likely have four to six court vacancies to fill.

An audience member asks Whelan to name some good conservative candidates for Supreme Court vacancies. Whelan says "I'm not going to answer that question," but then answers it anyway. Of the top of his head:

• Edith Jones


• Mike McConnell


• Brett Cavanaugh (Scroll down)


• Jeffrey Sutton


• Frank Easterbrook

The last one, in my notes, looks like "Joey Clemens," but it's hard to read my own writing, and Google turns up nothing. Also tried "Chalmers," but that didn't work either. I suppose it could be Edith Clement or John Cornyn (scroll down), if I'm going deaf or my handwriting has completely gone to pot. Any other ideas?

Labels: Bench Memos, Conservative Summit, Ed Whelan, Judicial Nominees, Supreme Court

  ¶ Posted by Paul Curtis 10:29 AM 0 comments