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February 06, 2007

Comments

And let's not forget !!!'s Me and Giuliani Down by the Schoolyard.

Well, in fairness, he could be pro-choice yet anti-Roe on procedural grounds ("it's an issue for the legislature" etc).

I like your comment about the fact that we elect "an executive branch." Not to mention a judiciary (through appointments). Too many people ignored this in 2000 and look where it got us.

Le Tigre is . . . seminal?

(Well done.)

But voters should also remember that they’re selecting not just an individual, but an executive branch. In an ideal world, voters would therefore take into the account the types of people who will be running the various administrative agencies (and nominating judges) under a certain person’s presidency.

Short then of requiring presidential candidates to declare their choice for every position in their hypothetical administration as well as a list of judges for every conceivable vacancy during their administration – and make this declaration during the primary season – where does that leave you? Haven’t you just painted yourself into a corner because, well, in a Republican administration these vacancies will more than likely be filled by (surprise) Republicans? Isn’t this possibly just a really easy way to justify never having to consider a candidate from across the aisle? I mean seriously, Rudy is the closest thing to a Democrat we have to offer, and IMO you are going to some effort to justify (preeminently) why you could not consider voting for him.

So your advice to me as a (recovering) Republican is that I should disregard out of hand ever voting for a Democratic presidential candidate because they will in all likelihood staff their administration with Democrats, and if judicial vacancies become open they will most likely nominate someone who leans left? That certainly makes politics a whole lot simpler for me. :)

it's more complicated than that. for instance, in choosing b/w say hillary clinton and john edwards, it's safe to say that labor will have a much role in the latter.

what rudy thinks about social matters just isn't really relevant b/c he won't be doing the day-to-day stuff like blocking UN birth control initiatives, etc. whether rudy is "as close to democrat" as possible doesn't matter if people like wolfowitz and alito are the results.

in 2000 for instance, i would have been ok with a mccain presidency b/c the gop institutional establishment (and religious right) was against him. thus, it's reasonable to think he wouldn't appoint and be beholden to those people. just the opposite is true today though.

"MO you are going to some effort to justify (preeminently) why you could not consider voting for him"

Starters for ya.

The problem, of course, is that it doesn’t really matter what Giuliani thinks personally about abortion. If his executive branch nominates judges that are anti-abortion, or delegates that process to the Federalist Society and OLC, then he is for all practical purposes anti-abortion.

What???? Opposition to Roe -- pointing out, for instance, that it's a badly-reasoned and mostly unsupported opinion (as Justice Ginsburg has) -- is the same as being anti-abortion? (I presume you mean to say "anti-choice," for there are very few folks -- if any -- who are pro abortion.)

Short then of requiring presidential candidates to declare their choice for every position in their hypothetical administration

well, this idea is really not all that outrageous, over here it's commonly called a "shadow cabinet"

frankly, i don't believe Rudy's being honest. i think he's on the McCain Panderwagon.

unless he's completely ignorant of current events, he knows perfectly well what appointing that kind of judge would do to abortion rights. you can't be pro-choice personally if you're making it impossible to choose.

Naming his/her preferred choices for important positions should indeed be part of the campaign. Of course, over here the election/political system is a bit different but it is the rule that a candidate for chancellor will present his cabinet before the election (and it does influence the voter's choice).
Judicial nominations are not comparable though because the German system is completely different from the US.

von - i plead guilty of sloppy language. i was referring the policy position that abortions should be illegal. that's the point -- rudy may not personally hold that view, but that's not the key question

it's more complicated than that

Still seems like way too many assumptions to me. Rudy is going to alienate important blocks due to his social views. It doesn’t make sense that he would then give these groups a lot of influence. Assuming those groups are distasteful to you, that should make him more attractive, no? If he makes it I think he will be a lot less beholding to any group than previous presidents.

I just don’t think that anyone’s crystal ball is that good. Take Justices Stevens, Souter, and O’Connor for example. They sure didn’t turn out the way you may have thought they would at the time they were nominated by Republican presidents.

OCSteve: I agree with Publius on this point. For me, though, this is a much easier call right now than it has been at any other point in my life.

Back in my youth, Republicans and Democrats disagreed on policy, but I didn't know anyone who thought that the Republican party establishment was in some way unreasonable, or way outside the mainstream, or anything. Whichever party won, you could expect that most of their appointees would be basically reasonable people, though (for instance) Republican appointees would be more likely to favor business and to worry about inflation, and Democrats would be more likely to favor labor and worry about unemployment.

Nowadays, though, large chunks (not all) of the Republican establishment is, in my view, just not reasonable at all. As I see it, on foreign policy, the Wolfowitz/Cheney/Feith school of thought is not just mistaken, but utterly out there. They don't just favor e.g. a bigger (or smaller) investment in the military than I do; they favor things like going to war with Iran, not negotiating with countries we have serious problems with, etc. If I elect a Republican, can I have any confidence that such people won't find themselves in positions of power? No.

On economics, the leadership of the Republican party doesn't just favor tighter monetary policy than I do; they are willing to incur what I think are insane and dangerous levels of debt, while being absolutely unwilling to entertain the idea of the tax increases their policies have made necessary.

On social issues, the Republican party doesn't just have a more conservative wing, it has a wing of people who deny evolution and try to prevent it being taught in schools, who oppose vaccinating kids against the major cause of cervical cancer because somehow that vaccine might lead them to have more sex (?!), and who generally have a bunch of views that I think are nuts. (Note: I do not think Christianity is nuts; I spent a long time being seriously Christian, and have lots of respect for it. So this is not about religion, for me.)

Voting for a candidate whose priorities would be different from mine, but who is basically sane and reasonable, is one thing -- and that has been what voting Republican would have been for most of my life. Voting for a candidate who might well turn over foreign policy to Paul Wolfowitz, economic policy to a disciple of Grover Norquist, education to someone who denies basic scientific facts, and social policy to someone out of Focus on the Family, is another thing entirely.

and, here's a conservative who thinks Rudy is "defacing the institution that forms the foundation of human civilization" by advocating "abortion on demand and same-sex unions".

"Judicial nominations are not comparable though because the German system is completely different from the US."

So are our constitutional systems, and ditto for the British.

With due respect, while an American candidate naming any degree of shadow cabinet in advance of the election is a reasonable thing to suggest, there are also a whole bunch of reasons why it's a bad idea, and more importantly, why it's apt to not fly, most of the time, as a politically good idea, which is why I don't advise holding your breath waiting for American candidates to do it.

The distinction I'm trying to make is that it's a reasonable thing to consider, in situations and elections where it would be politically helpful, but beyond that, it's never going to happen when it would be politically unhelpful -- which is most of the time in the forseeable future -- so it's not a reasonable thing to suggest we must adopt as a permanent system, absent changing our system much more wholly to a parliamentary one.

The primary reason candidates won't do it is that in many situations it will simply add more political negatives, and cut the flexibility of maneuver of a candidate, more than it will add positives, in most cases. The candidate winds up saddled with the responsibility for the words and acts of however many people other than the candidate, and that's asking for unnecessary trouble.

It also suggests an admission that the candidate is too weak to be elected on their own, which is a killer right there.

And then, after the election, the President winds up politically owing the Cabinet, and is politically weaker in any disagreement with them. This matters not in a parliamentary system, but screws up a President who is head of government, with a Cabinet that is not, in fact, elected, and isn't supposed to have independent powers.

You can look into the Andrew Johnson administration for an explanation of just how bad this gets; he was impeached over precisely these issues, and it shouldn't have happened.

"Back in my youth, Republicans and Democrats disagreed on policy, but I didn't know anyone who thought that the Republican party establishment was in some way unreasonable, or way outside the mainstream, or anything."

You didn't know anyone who thought that Richard Nixon was in some way unreasonable? That HUAC was in some way unreasonable? That Barry Goldwater was in some way unreasonable? That Ronald Reagan was in some way unreasonable?

Really? You knew no leftists or liberals at all?

Possibly this is over-statement by way of comparison to the current Administration? Or not?

"Whichever party won, you could expect that most of their appointees would be basically reasonable people, though (for instance) Republican appointees would be more likely to favor business and to worry about inflation, and Democrats would be more likely to favor labor and worry about unemployment."

I really don't recall this being the view of many Democrats in 1964, and I have to disagree that it was. It wasn't.

Rightly or wrongly, many people believed that President Goldwater would get into a nuclear war. Honest. I'll show you polls from the time, if you like, to demonstrate that this is a fact as to what many people believed then.

Gary: I knew lots of people who thought that Nixon was personally paranoid and criminal. I did not know many people who thought that his policy views were unreasonable, which was the point. By the time of my youth, luckily, McCarthyism was not just past but pretty clearly repudiated. Goldwater -- well, yeah, but the words 'the Republican party establishment' were supposed to be taken literally. As far as I could tell, at the time they thought he was a horrible aberration not to be repeated.

Reagan is a different matter, but one that mostly illustrates Publius' point. Reagan himself often seemed to be badly informed, and he was clearly outside the mainstream on economics. But even in his case, the Republican establishment generally did not seem to share his odder views, and this (imho) put a pretty serious check on him.

Publius (and Hilzoy): If you want to make this case specifically concerning this next election, then I can better understand where you are coming from.

I took the original post to be a lot more general than that (even though Rudy was mentioned so was 2004 and it came across as more of a general principal to me). Comments since have zeroed in more on 08, which I can understand. I’d still like to borrow your crystal ball when I next make lottery tickets though.

when I next make lottery tickets though

Err, buy lottery tickets that is.

Probably should not cop to making them in a public forum.

i second hilzoy's comments -- there's just a lot I fundamentally reject about INSTITUTION that is the modern GOP. again, that's not dissing conservatives. i just don't get the sense that the institutional make-up of the executive branch will be any different under any of these candidates.

the flipside of course is that, if i'm right, social conservatives are mistaken in opposing rudy so strongly. if he promises to give them judges, who cares what he thinks personally.

"But even in his case, the Republican establishment generally did not seem to share his odder views, and this (imho) put a pretty serious check on him."

I'm not entirely sure if you're talking Reagan '64, or '68, or '72, or '76, or '80. By 1976 he, and the Goldwaterites, and the rest of their wing of conservativism (it's hardly as if Nixon wasn't considered purebred conservative at the time -- claiming he wasn't a conservative wasn't much heard beyond the John Birch Society until the Nineties) pretty much were the "Republican establishment." By 1980, there is no questioning this, it seems to me.

As governor, I don't see that the Republican "establishment" put any sort of "check" on Reagan.

"I did not know many people who thought that his policy views were unreasonable, which was the point."

You didn't know many people who thought Nixon's policy views on Vietnam, or domestic repression, or use of the FBI, were unreasonable? Well, there were more than a few, and they held large marches. Very very large marches. And protests. And riots.

It really seems to me that there's a bit of "back when I was young, or before that, things were so much better" selective viewing going on here. I'm pretty sure that there were more than a few folks in Chicago in 1968, and elsewhere, who thought that Richard Nixon's had policy views that were unreasonable, and I'm pretty sure there were still more than a few folks in Miami in 1972 who still thought that.

More than "pretty sure," actually.

Thirty-five years later, this may seem less vivid.

I'm also pretty sure that folks at Kent State in May 1970, or at nationwise 1971 May Day protests, weren't there because their views of Richard Nixon as a person, but because of his policies. And so on.

Am I wrong?

I have been wary of Giuliani since he was number three man in the DOJ under Reagan, and in order to find a way to discriminate against Haitians fleeing oppression on their half of Hispaniola, he spent a day with Baby doc and came back to proclaim that there was no oppression in Haiti.

Incidents such as the Abner Louima matter, his shabby treatment of Benjamin Bratton, releasing Patrick Dorismond's sealed juvenile record, his affairs, his utter lack of humility, the murder of Amadou Diallo and his crude treatment of those with legitimate disagreements all tell me that those who like him know precious little about him.

"Benjamin Bratton"

I think you mean William J. Bratton; Benjamin Bratt, on the other hand, is an actor.

gary - you are aware right that senate republicans in 1964 overwhelmingly supported the civil rights act, that reagan raised taxes a lot, that nixon signed environmental legislation, that James Baker led a pretty successful coalition in Kuwait premised on diplomacy and respect for legitimacy.

"I'm pretty sure that there were more than a few folks in Chicago in 1968, and elsewhere, who thought that Richard Nixon's had policy views that were unreasonable"

Since the Chicago riots occurred during the Democratic convention, while LBJ was still in office, I suspect that Nixon's views were not the ones the rioters were protesting. The 1968 Republican Convention was held in Miami

"gary - you are aware right that senate republicans in 1964 overwhelmingly supported the civil rights act, that reagan raised taxes a lot, that nixon signed environmental legislation, that James Baker led a pretty successful coalition in Kuwait premised on diplomacy and respect for legitimacy."

Quite. I'm unaware that that changes anything I've said. What's your point?

George W. Bush has spoken out many times about Islam being a great religion and against anti-Islamic prejudice, has signed environmental legislation, has signed regulations that limit some forms of discrimination against gays, and increased aid to Africa and for AIDS. So what?

"Since the Chicago riots occurred during the Democratic convention, while LBJ was still in office, I suspect that Nixon's views were not the ones the rioters were protesting."

Neither does that change my point -- if you want to argue that the same people believed that Richard Nixon would have good policies, be my guest -- and if you'd like to argue that protestors from January, 1969, through 1974, liked his policies, and thought him a moderate, likewise.

"Neither does that change my point -- if you want to argue that the same people believed that Richard Nixon would have good policies, be my guest"

Not really -- more like the presence of street violence is not a good indication of how far from the mainstream the person being protested was, and a far better indication of how far from the mainstream the persons doing the protesting are. Since the radical left wing was moved to protest a convention which was nominating the longtime liberal standard bearer, Hubert Humphrey, it is hardly surprising that they would also oppose the policies of the Republican nominee. On the other hand, I don't think that is by itself sufficient to show Nixon's policies were not mainstream.

I found this post amusing because the prospect of appointing Constitutionalist judges is at this point the only reason I would consider voting for an institution Republican.

I see the defense of Roe as especially bad. The poorly reasoned, anti-Constitutional, power grab has been poisoning the US political sphere ever since it was made. It was also very largely responsible for divorcing the Democratic Party from many of its natural constituents in the church community. (Natural constituents you question? Absolutely. The abortion ruling was a thunderclap in the evangelical community. It moved a group firmly interested in helping poverty and with a history of involvement in labor straight into Republican arms.)

Dantheman: "On the other hand, I don't think that is by itself sufficient to show Nixon's policies were not mainstream."

That's an entirely different question than what Hilzoy said:

Back in my youth, Republicans and Democrats disagreed on policy, but I didn't know anyone who thought that the Republican party establishment was in some way unreasonable, or way outside the mainstream, or anything.
The substance of the policies aren't under discussion. But that's an extraordinarily surprising statement to me, as I don't know how it can be true unless Hilzoy never met any leftists when she was young. Or Democrats. Or anyone who thought Barry Goldwater would be apt to start a nuclear war (he did advocate use of nuclear weapons in Vietnam, you know: I hope everyone hasn't forgotten that). (Although I'm not sure exactly how old she is, which isn't a polite question to ask.)

Goldwater:

Interviewed by Howard Smith on ABC Television, Senator Barry Goldwater made the following chilling statement about possible use of nuclear weapons in Vietnam and the possibility of a US attack on China:

"There have been several suggestions made. Defoliation of the forests by low-yield atomic weapons could well be done. When you remove the foliage, you remove the cover. We might have to (take action against China). Either that, or we have a war dragged out and dragged out. A defensive war is never won. If we decide to go into this war in a full-scale way, certainly we would have to make the decision on strategic supplies for the enemy at the same time."
Goldwater and his supporters were keen to downplay his remarks. However, such statements were far from out of character for the Arizona Republican. In October 1963, for example, he had described the nuclear bomb as "merely another weapon". He had also led the (unsuccessful) effort to block ratification of the 1963 Limited Test Ban Treaty that had banned nuclear test explosions in the atmosphere. Previously, he had also opposed fellow Republican President Eisenhower's efforts to negotiate with the Soviet Union.

And:
Goldwater had been an opponent of Franklin D. Roosevelt and the New Deal. He also had a strong dislike of Harry S. Truman and his progressive social policies. Goldwater joined the Republican Party and in 1952 was elected to the Senate. He immediately became a loyal supporter of Joe McCarthy and was one of only 22 senators who voted against his censure in December, 1954.

On the extreme right of the Republican Party, Goldwater often criticised the policies of Dwight Eisenhower. He described his social policies as "dime-store New Deal" and strongly opposed the President's decision to use federal troops at Little Rock. Goldwater also believed that Eisenhower was too soft on trade unions....

Needless to say, the 1964 Republican candidate for President was Barry Goldwater, not Nelson Rockefeller.

It wasn't just leftists who thought these policies "unreasonable."

It wasn't even just liberals.

Although his views on civil rights made him popular in the Deep South, was easily defeated by Johnson by 42,328,350 votes to 26,640,178. Goldwater received 38.8 per cent of the vote and won only six states.
The fact that thirty and forty years later, people view him fondly because he was libertarian about gay rights, and otherwise could be found to have some cherry-picked admirable views, particularly to contrast with George W. Bush, doesn't in the least change that: a) he was the Republican candidate for President; and b) his policy views were thought unreasonable by quite an awful lot of people at that time. As did Richard Nixon's policy views on Vietnam and civil liberties and domestic repression, and many other things, to many millions of Americans at the time.

No matter selective hindsight.

Gary,

You are right of course. It's Bill Bratton.

I tend to agree with Gary on this one.

Perhaps compared to what is currently seen as the Republican establishment, the old one may have seemed more radical, but at the time Goldwater was extreme and his candidacy probably hurt the party for a while.

I think the main reason Nixon won was a vote against the war in Vietnam, no matter who the Democratic nominee was.

Reagan is a whole different thing.

However, I believe it is true that, at least in DC, there was a litle more comity and members of the two parties would actually speak to each other, which doesn't happen very much any more.

And I am pretty sure that rock solid Republicans view most Democrats as unreasonable, except for Lieberman, who isn't a Democrat any more.

"However, I believe it is true that, at least in DC, there was a litle more comity and members of the two parties would actually speak to each other, which doesn't happen very much any more."

Yes.

I also have this quote from Gibbon on the sidebar of my blog for a reason:

"There exists in human nature a strong propensity to depreciate the advantages, and to magnify the evils, of the present times."
-- Edward Gibbon

Gary,

Your 4:11 comment is nearly directed entirely at Goldwater, who the folks in Chicago in 1968 were also not protesting. She said that on that topic "Goldwater -- well, yeah, but the words 'the Republican party establishment' were supposed to be taken literally. As far as I could tell, at the time they thought he was a horrible aberration not to be repeated."

So again, I don't think anything can be imputed from the 1968 Chicago protests with respect to Nixon's status vis-a-vis the policial mainstream. Please stop trying to cram a larger point into this disagreement.

"Constitutional judges"

Now there's a question-begging term. So constitutionalist that they'd overrule Hamdan and Rasul....(I realize it's theoretically possible to support overruling Roe and not Hamdan, but in practice Giuliani is more likely to appoint judges who would uphold Roe and overrule Hamdan. In fact, the second is confirmed with Roberts; we can't be certain of the first.

Publius, why do you assume that Giuliani would appoint only judges who would vote to overrule Roe? Reagan didn't; Bush the elder didn't.

I'm not tempted to vote for him, mind, and I do think that he is more likely to appoint Roe-overturning judges than even a nominally pro-life Dem would be. But I also think that if he somehow got the nomination, he might face a third party challenge from the national right to life party.

I don't understand why you're still talking about Chicago '68, Dantheman, after what I wrote.

"Please stop trying to cram a larger point into this disagreement."

What do you see as "this disagreement," that I should stop trying to "cram" some other, "larger," point into? (Feel free not to answer; I have the feeling this is spiraling down into something pointlessly irrelevant, since I'm already baffled as to where you are going, though I could be just being dense.)

"So constitutionalist that they'd overrule Hamdan and Rasul"

I'm not a big fan of penumbras formed by emanations of Executive Power either. But I'm not a big fan of penumbras formed by emanations...

I understand the substance of your position but calling your preferred Supreme Court justices "constutionalist" is a bit like referring to your political party as "the pro-America party".

I came of political age during the sixties (actually the late sixties and early seventies), and, while I agree that many people thought the Republicanns of that time were unreasonable, I don't thinnk they (the Republicans) were widely perceived as authoritarians, criminals, and/or religious fanatics who were bent on the destruction of our economy and the fulmenting of unnecessary wars. In other words, I agree with hilzoy that thhe Republicanns of this day are far worse than the Republicans of thhe sixties, but her choice of "unreasonable" as a descriptor was, perhaps, overly polite.
. BTW, by "Republican" I mean the national party leadership, the national elected officials and the promenent spokespeople.

Gary,

I responded to this comment of yours, responding to hilzoy:

""I did not know many people who thought that his policy views were unreasonable, which was the point."

You didn't know many people who thought Nixon's policy views on Vietnam, or domestic repression, or use of the FBI, were unreasonable? Well, there were more than a few, and they held large marches. Very very large marches. And protests. And riots.

It really seems to me that there's a bit of "back when I was young, or before that, things were so much better" selective viewing going on here. I'm pretty sure that there were more than a few folks in Chicago in 1968, and elsewhere, who thought that Richard Nixon's had policy views that were unreasonable, and I'm pretty sure there were still more than a few folks in Miami in 1972 who still thought that."

I specifically pointed out the strangeness to me of your comment regarding the "few folks in Chicago in 1968.", as not providing any insight as to whether Nixon's policies were mainstream. Our disagreement revolves over whether Nixon's policies were within the mainstream or not.

What do you want me to say? Publius is complaining that his non-preferred judges will fail to defend the penumbras formed by emanations that he prefers. He suggests that THAT is why you should be sure to avoid voting for Republicans.

I believe it is better to avoid legitimizing the penumbras formed by emanations game because both sides can play it and doing so shreds the actual Constitution. I'm thrilled by the recent rediscovery of that principle by liberal jurists. I lament that for both sides, like deficit concerns, it tends to be more employed as a rhetorical device when you think your side is losing rather than an actual principle to hold to.

"In other words, I agree with hilzoy that thhe Republicanns of this day are far worse than the Republicans of thhe sixties"

That's a different claim.

Dantheman: "Our disagreement revolves over whether Nixon's policies were within the mainstream or not."

I repeat:

That's an entirely different question than what Hilzoy said:
Back in my youth, Republicans and Democrats disagreed on policy, but I didn't know anyone who thought that the Republican party establishment was in some way unreasonable, or way outside the mainstream, or anything.
The substance of the policies aren't under discussion.
Usually repeating things doesn't gain understanding, but I'm not sure what else to say. We're not talking about the substance of the polices.

I continue to insist that millions of Americans thought that various policies of the Republican leadership of Goldwater, and Nixon, were unreasonable, at the time.

They were the leaders of their party as their presidential nominees, and in Nixon's case, as President (and when he was Vice-President).

As ever, I am not arguing anything else. I am not arguing some other point some other person, somewhere, has made. I am not arguing about policy, and I am not arguing comparisons of Republicans from one age or another.

Let me repeat that.

I am not arguing comparisons of Republicans from one age or another.

Let me repeat that again.

I am not arguing comparisons of Republicans from one age or another.

I am maintaining that millions of Americans thought that various policies Republican leadership of Goldwater, and Nixon, were unreasonable, at the time. You, hilzoy, publius, whomever, are free to agree or disagree.

You are also free to argue some other point that someone else is arguing, but if you're arguing that point we me, I'm not apt to find it in the least relevant to this point, unless it is.

Gary: as I said, my recollection (and it's supposed to apply to the GOP establishment, not all Republicans) is: Goldwater was unreasonable and (a) not an establishment candidate to begin with, and (b) utterly repudiated by the establishment. Nixon was vile but not regarded as unreasonable. Reagan was part antiestablishment, part sign that the establishment itself was turning, but if you don't recall the "the nutcases within Reagan's administration screw things up, then grownups appear and try to set things right" repeating storyline, then our memories differ. (Reagan cuts taxes; deficits balloon; Reagan is convinced to raise taxes. Reagan and his people get obsessed by the contras, Iran/Contra happens, a whole new crowd takes over. Etc.)

The entire point of my comment was to mark a distinction between saying (a) that some policy strikes me as wrong, possibly very wrong; and (b) that some policy strikes me as completely insane. So talking about whether anyone "liked his (Nixon's) policies, and thought him a moderate" is beside the point, as is the question whether anyone I know "believed that Richard Nixon would have good policies." I did know a few people who thought Nixon had good policies, but they were few and far between. All I was saying was that for all the disagreement, which was quite serious, most people I know also believed that he lived on planet earth, not out in la-la land. Which is where, in my view, the people who are presently in control of our government live.

Publius, why do you assume that Giuliani would appoint only judges who would vote to overrule Roe? Reagan didn't; Bush the elder didn't.

Exactly. I never saw a response to this from earlier:

Take Justices Stevens, Souter, and O’Connor for example. They sure didn’t turn out the way you may have thought they would at the time they were nominated by Republican presidents.

But consider that Republican presidents have made the bulk of the nominations since, what? 1970? That should have resulted in a court packed with fire-breathing conservatives. Yet today it is still fairly well balanced. Your points on keeping essentially the same administration are making more sense after follow up – but I point to history to dispute your concern about the court.

The abortion ruling was a thunderclap in the evangelical community. It moved a group firmly interested in helping poverty and with a history of involvement in labor straight into Republican arms.)

Then fairly obviously, they were just never that interested in helping poverty, if their reaction to women being able to choose to terminate was to actively prevent low-income women from being able to support their children.

I noted ages ago that it's obvious when you look at the live childbirth stats in the US that the right to obtain legal abortion made no discernable difference to the birthrate. None. Women who got pregnant and didn't want to be got abortions before 1973 and after 1973 at about the same rate, evidently.

The one real evident difference that enshrining a woman's right to choose in law made was that women were far less likely, if they decided to have a baby, to give it up for adoption. Roe ended for good the supply of healthy infants available for adoption from birth, not because women became more likely to abort, but because women who decided not to abort became more likely to keep.

Some of the pro-life movement is anti-sex, and in particular, against the idea that women have a right to control our own bodies and have sex with a male partner and still get to decide to have or not to have children. (It's notable, after all, that not a single pro-life organization, anywhere in the US, is actively for supplying contraception - and many actually campaign against access to contraception. Planned Parenthood has undoubtedly done far more to prevent abortions than all the pro-life organizations in the US put together.)

But some of the pro-lifers are anti a woman's right to choose because they want the days when a middle-class white couple could have their pick of white babies to adopt back. Free surrogate motherhood, with no obligation to the mother.

Any evangelical Christian who turned to the Republicans because Republicans would reliably want to prevent low-income women being able to get contraception, choose to have an abortion, or choose to keep the baby and be able to support herself and her baby, was evidently not interested in helping women, helping children, preventing abortions, or working against poverty: just as racist Democrats became Republicans when the Democratic Party became pro-civil rights while Republicans are still reliably anti.

Too lazy to refresh my memory in detail, so a quick Wikipedia blurb:

Seven of the current justices of the court were appointed by Republican Presidents, while two were nominated by a Democrat. In legal circles, it is popularly accepted that Chief Justice Roberts and Justices Scalia, Thomas, and Alito compose the Court's conservative wing. Justices Stevens, Souter, Ginsburg and Breyer are generally thought of as the Court's liberal wing. Justice Kennedy is considered a moderate conservative, who is most likely to be the swing vote that determines the outcome of close cases.

Today, based on your concerns, the court should be 7-2. Yet it is 4-4-1.

And Rudy, being pretty socially liberal, should give you less pause than any of his predecessors. Seeing as the court is purely domestic, that seems like a perfect (for an R president) alignment for you. So I’m still scratching my head a bit on that aspect.

Another differrence between the Republican party of todayy annd thhe Republican party of, say, 1968, is that the current party is more uniform and more uniformly right (far righht). The Republican party of 1968 had more variety from moderate to righht and some of the bigggest righht wing extremists of all were Democrats.

Which gets me to OCSteve's thought. yes, historically Republican administrations have put reasonable, responisble middle to medium right judges in office and even some that turned out to be more lefft than expected. But that was then annd this is now. The current Republican leadership has a well established track record of insisting on appointments and nominations that are in no way moderrate, middle, or even just sort of right. Their canndidates are inn the range from highly righhtwinng ideologues to commplete nutcases. Guiliani seems to be positioninng himself as a moderate at heart who is willinng to throw his moderation away to get the nomiation. Whose to say his moderation won't be thrown away if he gets elected? He's more likely to dance with those that brung him, seems to me.

"Gary: as I said, my recollection (and it's supposed to apply to the GOP establishment, not all Republicans) is: Goldwater was unreasonable and (a) not an establishment candidate to begin with,"

My point as regards Goldwater is that when your wing of the party has grown in such strength that you control the national convention and are made the Presidential candidate, you have become the leader of the establishment.

This is not commonly considered a controversial claim.

I maintain that this is the case. Goldwater was the leader of the party in 1964, not Nelson Rockefeller, and not the eastern liberal Republicans. The latter lost, and they never, ever, won again. In 1968, the conservatives went ahead and renominated the prior conservative candidate from 1960, Richard Nixon., who was renominated as the incumbent in '72. Ford was the accidental president, and Reagan was waiting in the wings; Reagan would otherwise likely have been the party nominee in '76, as he was in 1980.

"Nixon was vile but not regarded as unreasonable."

This is ex post facto, I'm saying. In comparison to Bush, yes, that's how he looks. That's not how most liberals and Democrats viewed him in the Sixties, or in 1972, I'm saying. And I'm pointing to the anti-war movement of the time as amongst the clearest and most indisputable evidence.

I seriously don't think you can maintain that the majority of delegates at the national Democratic convention, in 1972, would have agreed with the proposition that they found Richard Nixon's "policies," if you put that question to them, "reasonable." I am saying that I strongly believe this is anachronistic, and claiming that attitudes held now were held then, when they are not.

This is a different point than the objective reality of how reasonable or not many of Richard Nixon's other policies, or bills that he signed and didn't veto, look today, or any other point of comparison as viewed from today, or the last few years.

That latter point seems to be your point, but it doesn't contradict mine, save where you may or may not be choosing to put it forward as such; if you're withdrawing your previous implied previous claim that no one (you knew, anyway) "thought that the Republican party establishment was in some way unreasonable" at the time, fine. It's a completely different point, after all, from whether the establishment was, in fact, more reasonable then than now, and that's a somewhat different point from whether there were still large numbers of sensible Republicans in those days, in the Senate and House, which I would absolutely agree with, of course.

Reagan was part antiestablishment, part sign that the establishment itself was turning, but if you don't recall the "the nutcases within Reagan's administration screw things up, then grownups appear and try to set things right" repeating storyline, then our memories differ.
This is more complicated, but there's certainly something to that, absolutely, and I could elaborate at great length, of course, but instead will simply point to Howard Baker replacing Don Regan as an example of what you're talking about, the retrenchment after Iran-Contra, and so on. Sure.

But, again, millions of Democrats nonetheless, at the time, thought many Reagan policies "unreasonable." That the Reagan Presidency again looks better in comparison with the Bush 43 administration, again I would not contest. It's the claim that no one back then thought the policies "unreasonable" that's unsupportable.

Hindsight is a wonderful thing, but let's recognize it for what it is, please.

(I can't speak to who you knew, of course, at any point. I can only speak to the object reality of what people's perceptions were then.)

The entire point of my comment was to mark a distinction between saying (a) that some policy strikes me as wrong, possibly very wrong; and (b) that some policy strikes me as completely insane. So talking about whether anyone "liked his (Nixon's) policies, and thought him a moderate" is beside the point,
That's why it was probably a bad idea for you to have asserted that implicitly no one serious "thought that the Republican party establishment was in some way unreasonable, or way outside the mainstream, or anything."

But, as I said, if you're withdrawing that claim, cool.

Just for clarity, would you care to outline between which years you were referring to as your "youth"? (Declining is fine.)

Incidentally, publius, the claim should be "I'm goddamned bona fide!"

;-) (Credit to the Coens.)

On this question of Nixon's policies being in the mainstream, to some extent of course they were. A great many Americans can be counted on to support any policy in time of war. I think one could make a case that the bombing of Cambodia was worse than anything Bush has done (yet), both in terms of the numbers the bombing itself killed directly (tens or hundreds of thousands, probably more than we've killed directly in Iraq) and the number that ultimately died. (500,000-1,000,000 in the Cambodian civil war and 1.7 million in Pol Pot's peace.)

Bush's Iraq war policy was entirely mainstream, so long as it could be painted as successful. Both Democrats and Republicans supported it. Oh, not the sensible ones, but we're not talking sensible here, we're talking about what was mainstream.

I agree with Gary and that Gibbon quote--Bush is horrible, but his horribleness relative to some of our previous Presidents is exaggerated in our minds because it is happening now. There's also the factor that the Iraq War is arguably worse for our strategic position than the loss in Vietnam. Or it could be. Don't ask me what that means exactly--I'm just repeating what I've heard. To me, a war that causes the deaths of several million people completely eclipses Iraq (so far), but mere matters of responsibility for peasant megadeaths aren't what mainstream political figures consider when they talk of the harm done to Ameri can interests.

Gary: look, it was a comment about my sense of things when I was growing up. All I said was: "Back in my youth, Republicans and Democrats disagreed on policy, but I didn't know anyone who thought that the Republican party establishment was in some way unreasonable, or way outside the mainstream, or anything." Note: "I didn't know anyone", not "no one serious", let alone "no one at the Democratic Convention."

This is not me thinking differently with hindsight, and fwiw I don't really see how you'd be in a position to know that, given the original remark. Also, it's just not true that I didn't know any Democrats etc., though it may be relevant that the socialists in my family are Swedish, not American, which I think makes a difference in inflection.

I was born in May 1959. My first political memories, leaving aside snippets like a memorial service for JFK in which (never having been in a church before) I kept saying, loudly, "WHEN ARE THEY GOING TO START SINGING??" and had to be taken away, and a recollection of seeing fire hoses turned on civil rights protesters on TV, start around 1967, and become pretty extensive pretty quickly.

"Then fairly obviously, they were just never that interested in helping poverty, if their reaction to women being able to choose to terminate was to actively prevent low-income women from being able to support their children."

A statement that makes perfect sense if you believe that a fetus is a blob of cells, but not so much sense if you believe it is a 'gift from God' or a 'child' or almost 'a child'.

One point, OCSteve, that you're neglecting, is that having Republican Presidents making the majority of the nominations since 1969 is that the measure of where the "middle" is, and what "liberal" is, on SCOTUS, has been pushed way to the right since then.

President Clinton couldn't have gotten away with nominating a William O. Douglas, or a William Brennan, or even an Earl Warren, or even a Thurgood Marshall, and considering them to be "liberals" and at least Stevens, Souter, and Breyer, to be "liberals," in identical senses, is wrong. The latter three are far more conservative.

"Today, based on your concerns, the court should be 7-2. Yet it is 4-4-1."

Not compared to, say, the court of Hugo Black, Wm. O. Douglas, Tom Clark, John M. Harlan II, William. J. Brennan, Potter. Stewart, Byron "Whizzer" White, Arthur Goldberg, or Abe Fortas, or Thurgood Marshall, etc., it isn't.

Gary: another to reformulate hilzoy's point is as a question. In your opinion, how common was the opinion that Nixon was actually insane in the 1960s and 70s? Not just wrong, not just malign, not just vile, but actually holding genuinely insane beliefs?

[IOW, I think the crux of your dispute turns on the notion of "reasonable", or rather "unreasonable". AFAICT, you're using it in the sense of immoderate, i.e. outside the mainstream; hilzoy's using it in the sense of "bat-sh** insane", i.e. outside of reason.]

"Not compared to, say, the court of Hugo Black, Wm. O. Douglas, Tom Clark, John M. Harlan II, William. J. Brennan, Potter. Stewart, Byron "Whizzer" White, Arthur Goldberg, or Abe Fortas, or Thurgood Marshall, etc., it isn't."

And Thank GOD for that. I know it is odd to quote yourself but:

This is a fight about the fallout of Roe v. Wade--just as the creation of the Christian Right was energized to bother with politics largely in response to the Supreme Court. The reason out-of-control Supreme Courts cause so much damage is because it can take 20 years of political resolve to even hope to fix things.

This is a huge problem with allowing the Court system to become the arbiter of so many important (but not-in-the-Constitution) societal decisions. The wounds caused by getting it wrong take forever to heal--very much unlike electing a stupid Senate or even a bad President. To take a step back from Bush, the long term political effects of maybe 5 years of really will-to-power rulings from the Supreme Court in a row have had a much uglier effect on politics than a term and a half of Nixon and the fallout of getting rid of him.

In order to even contemplate the serious limiting of the 'penumbras formed by emanations' liberal crowd, it took almost 25 dedicated years of focused political work. The fact that liberals are finally looking at the merits of some sort of textualism again is due to that. The liberal court gamesmanship of the 1960s and especially 1970s is a huge piece of why things are so full of rancor now. It wasn't just abortion either, liberal versions of punishment in the 1960s and 1970s as played out in the courts were also influential.

One point, OCSteve, that you're neglecting, is that having Republican Presidents making the majority of the nominations since 1969 is that the measure of where the "middle" is, and what "liberal" is, on SCOTUS, has been pushed way to the right since then.

I’m sure there is a lengthy debate to be had there, but I’m not up to it tonight.

Ring. Towel. Thrown.

"Also, it's just not true that I didn't know any Democrats etc., though it may be relevant that the socialists in my family are Swedish, not American, which I think makes a difference in inflection."

Probably. If everyone you knew, back between 1960-70 thought Richard Nixon and Barry Goldwater's policies were reasonable, and you knew no one who thought them reasonable, I certainly can't disagree that this was the case, and your family certainly would have affected that.

Out of curiosity, did your parents take you on any protest marches during that time period? (I know that, of course, that your father had to face protests and radicals; I have little idea how that affected your environment, or the people you knew; did you know people who were protesting?)

Donald: "I think one could make a case that the bombing of Cambodia was worse than anything Bush has done (yet),"

Indeed, and quite a lot of people thought it quite unreasonable. Some even, rightly or wrongly, thought it insane.

Of course, there was a great deal of passion then. Part of my point. Most hippies and leftists, and a great many liberals, "thought that the Republican party establishment was in some way unreasonable."

Most liberals also thought the same during Eisenhower's time, of course. True fact.

Of course, the majority of Americans felt differently about Ike and the Republican establishment, and so did they about Nixon and the Republican establishment, for his time in office. But that's flipping the question of whether no one disagreed.

"There's also the factor that the Iraq War is arguably worse for our strategic position than the loss in Vietnam."

I think it almost certainly is, though it will all be clearer in another 20 years, of course.

"Don't ask me what that means exactly--I'm just repeating what I've heard."

Basically, the Middle East, and its oil, are a lot more important to America and Europe and Japan and the world than Southeast Asia ever was to anyone outside it. Plus the Israeli/Palestinian complications, of course.

" most people I know also believed that he lived on planet earth, not out in la-la land. "


Nixon is the guy who was getting inspiration by watching "Patton" before invading Cambodia. I think a lot of liberals thought he was bats*** insane when it came to the Vietnam War, and rightly so. Macho posturing is part of what he and Kissinger were all about.
Similarly, as Gary pointed out, people thought Goldwater might use nukes in Vietnam and they had some reason to think so. And in Reagan's era quite a few liberals thought the SDI program was a dangerous fantasy, likely to increase the chance of nuclear war through miscalculation rather than being the perfect shield that would make nuclear weapons impotent and obsolete. And worries about nuclear war are more serious even than our present-day worries about Bush's plans for the Mideast.

Reagan also infuriated human rights groups with his repeated defenses of people with grotesque human rights records.

One could probably argue that Nixon and Reagan were closer to reality on more subjects than Bush--in that case we'd have to list topics, compare policies, and calculate percentages and maybe Bush would lose. But from a liberal/left viewpoint, Goldwater, Nixon, Reagan, and Bush II were all frothing-at-the-mouth lunatics on some extremely important issues. And (except maybe for Goldwater's suggested use of nukes in Vietnam) they had some mainstream support for the positions that infuriated liberals, just as Bush had plenty of mainstream support for the invasion of Iraq.

Sebastian: A statement that makes perfect sense if you believe that a fetus is a blob of cells, but not so much sense if you believe it is a 'gift from God' or a 'child' or almost 'a child'.

But, Sebastian, someone who believed that a fetus is "a 'gift from God'" would naturally never join the Republican party since they would prefer not to have low-income women driven to choosing abortion because they could not support a child: they would want these "gifts from God" to be supported, both before birth and after.

Nor would someone who believed a fetus is "a 'child' or almost 'a child'" support the pro-life movement, since they would prefer to prevent abortions by sex education and access to contraception, rather than harass women for having abortions.

Evangelical Christians to whom harassing women is more important than preventing abortion or working against poverty were plainly never that concerned about women, babies, or poverty in the first place.

"In your opinion, how common was the opinion that Nixon was actually insane in the 1960s and 70s? Not just wrong, not just malign, not just vile, but actually holding genuinely insane beliefs?"

Pretty common among hippie-type kids under 25; threaded throughout a minority of liberals; an overall distinctly minority view in America, of course (no more than 10-20%, probably).

Probably not much different from today about Bush, perhaps.

"Nixon is the guy who was getting inspiration by watching 'Patton' before invading Cambodia."

And talking to White House portraits of Presidents during late Watergate.

Besides, what exactly is so bad about the so-called too liberal judges? Just think about what America would be like without their rulings. You couldn't use birth control in New Jersy, a rape victim wouldn't be able to get an abortion anywhere, the police could bully people into confessing since the uninformed or moneyless would have no access to lawyers, there would still be formal, legalized aparthied in large sections of the US and it would be acceptable to deny people access to jobs or school based on genetic features.

There isn't the slightest reason to think that legislative action would have fixed any of that. On the contrary, those cases ended up in court because the legislatures would not take action. And to those who suggest that one should just be patient annd let the legislatures take there time, I saw one hundred years of Jim Corw annd back street abortions was enough.

Compare that track record to the record of arecent federal court niminee: Myers wrote that the profits made by the exploitation of public resources were protected by the "takings" language and that, therefore, regulations on the use of public lands which innterfered with or diminished those profits were unconstituional.. Unfortunately he is not a lone wacko in that thinking. Since back in James Watt's day there has been a concerted efffort to get so-called "proprty rights" judges, who call themselves strict constructionist conservatives, innto jjudgeships.

The probelm with the nominees backed by the cuurrent leadership of the Republican party isn't that they are connserevtives or strict constructinalists. The problem is that they are activists with agendas. The last round of federal judge nominations should have made that apparent.

"Don't ask me what that means exactly--I'm just repeating what I've heard."

Basically, the Middle East, and its oil, are a lot more important to America and Europe and Japan and the world than Southeast Asia ever was to anyone outside it. Plus the Israeli/Palestinian complications, of course.


Thanks Gary. Actually, I sorta knew that, and can even agree that in the sense defined, the Iraq disaster is worse for the US than Vietnam, so I was posturing there. But it'd be nice to live in a country where the guilt of what we did in Southeast Asia weighed more heavily on our policymakers, even if the strategic aftereffects weren't all that important because the domino theory turned out to be wrong. MacNamara at least seemed broken by it (though lefties claim he went on to do a lot of damage at the World Bank--I don't know enough to say if that's true.) But MacNamara was the exception.

"did your parents take you on any protest marches"

Yes. They had been against the war since 1959 or so, having courted in Paris in 1954. I went and handed out leaflets against the war myself starting in 1968.

Publius, you need to copyright the title of this post, cause then you might get some bucks when Brownback or the others use it in a primary against Guiliani.

Lily, "You couldn't use birth control in New Jersy, a rape victim wouldn't be able to get an abortion anywhere"

"There isn't the slightest reason to think that legislative action would have fixed any of that."

You're factually wrong about that. Take homosexual sodomy laws for instance. By the time the Supreme Court got around to that, the laws had been changed in most states already and in order to get the test case, the guys had to effectively stage the arrest.

Re: abortion. The question of when life begins ia a religious one and, therefore, decsionns abouut abortion should be private, not an imposed big government "Thou Shalt Not" decree, IMHO.

Objecting to abortion on the grounds thhat it is wrong to kill babies onnly makes sennse if the personn making thhat argument is also goinng to object to war, some kinnds of stem cell research, and inn vitro fertilization and every other human action that brinngs about thhe death of babies.
The real debate isn't about abortionn: it's about what circumstances make the killinng of another human acceptable. We all think it is acceptable sometimes. Sometimes the answer is clear: an act of deadly aggressionn againnst another human (outside the rules of combat) is considered by virtually evveryone to be wrong and is illegal. Onthe other hand there isnn't a consensus about fertilized eggs although most Americanns do support the choice off abortion underssome circumstances.

I thouughht that "thhe government that governns best, govern sleast" would leave those kinnds of unresolvable religous decisions to the inndividual. And that's exactly what Roe did.

I'm factually righht about the birthcontrol example--or, at least I thought I was! ( I didn't mentionn sodomy). Whhen I was conceived in Nnew JJersy in 1953 my parents could not legally by birthhconntrol inn the state. They wennt to NewYork to get condons.

Lily, "You couldn't use birth control in New Jersy, a rape victim wouldn't be able to get an abortion anywhere"

"There isn't the slightest reason to think that legislative action would have fixed any of that."

You're factually wrong about that.

Hang on, Sebastian: however reasonable, you can't legitimately claim that someone is "factually wrong" about a counter-factual speculation. That's simply not a claim which can be even theoretically correct.

The best you can say is "here are the good reasons you are probably wrong." Stress on "probably," not "factually."

Alternative worlds are not, in fact, facts. Neither are your opinions, nor Lily's, nor anyone's.

That was funny, by the way, LJ.

Does anyone really think they're going to change anyone's mind arguing the basic arguments about abortion again, by the way?

What on earth do you people think you're doing? (Half-smiley.) What's the point? Argument for it's own sake?

Here you go: I say that gun control run by Captain Picard and the Mac OS will lead to more abortions than guns distributed by Windows Vista and Captain Kirk.

Gary,

For some reason you seem to prefer to conflate Goldwater and Nixon in this discussion, when both hilzoy and I have both indicated that we have differences in how they were perceived. And I may add, that difference in perception was reflected at the voting booth, where Goldwater lost by a landslide, and Nixon never did, losing a very close election in 1960 and winning one in 1968.

"That's not how most liberals and Democrats viewed him in the Sixties, or in 1972, I'm saying. And I'm pointing to the anti-war movement of the time as amongst the clearest and most indisputable evidence."

Except that same anti-war movement started against LBJ, and reached its zenith in Chicago protesting against liberal icon Humphrey. In other words, they were non-partisan in their protests, and thus don't constitute much evidence as to how the majority of liberals or Democrats felt.

Sebastian Holsclaw: Take homosexual sodomy laws for instance. By the time the Supreme Court got around to that, the laws had been changed in most states already...

Most states didn't have slavery in the 1850s; I'm not convinced that this kind of metric is in any way useful when talking about deprivation of civil liberties. The numbers are somewhat more in your favor here -- IIRC, it was somewhere between 12 and 18 states that had sodomy laws struck down and Wikipedia concurs -- but still, I'd say your looked-for change was dragging considerably.

[Especially since, if we're dealing in counterfactuals, I could easily see a number of states reverting back to outlawed homosexuality before the remaining anti-homosexual states converted.]

Jesurgislac: someone who believed that a fetus is "a 'gift from God'" would naturally never join the Republican party...

This is simply wrong. Ganz falsch, as Pauli used to say. You can make several arguments related to this -- primarily to the tune that people are inconsistent or don't think their beliefs through or that beliefs are not closed under entailment -- but the claim as it stands... it's not even ganz falsch, it's nicht einmal falsch.

[Apologies to any Germans or German-speakers out there if I've mangled the phrase.]

PS: Please don't come back with a variant of the No True Scotsman unless you're prepared to back your claims up with actual psychological studies.

Opposition to Roe . . . is the same as being anti-abortion? (I presume you mean to say "anti-choice," for there are very few folks -- if any -- who are pro abortion.)

Given the number of states with bills pending in their legislatures to outlaw abortion as soon as Roe is overturned, and given the number that try to effectively slip in abortion-outlawing bills each and every year, yeah, being anti-Roe is effectively being anti-abortion. I can count the number of people I know who are actually pro-choice but anti-Roe on one digit.

Your parenthical, btw, makes absolutely no sense. What does a lack of pro-abortion people have to do with the existence of anti-abortion people?

PS: I'd like to see some history from Sebastian of what the evangelicals as a political bloc have done for poverty and labor after petulantly leaving the Democrats -- as he claims -- over Roe. Because the biggest evangelical blocs I know of in this country are anti-union, anti-labor, pro-Reaganomics, pro-business voters.

I never brought up sodomy laws.

I brought up birth control, abortion, Jim Crow laws, and discriminatory practices. If the starting point for measuring progress through legislative action is the Civil War, then I suppose there was some slow progress in all of those areas. But how long are people supposed to wait for basic rights?
One of the problems with an overly ideological approach to politics is that it leads to the use of a prinicple ( a principle that matters only to the ideologues) to obstruct the solving of what the ideologue him or herself might perceive as a significant problem. Hardly anyone wants to go back to how things were before the liberal activist judges made all of those supposedly terrible rulings but the rulings are supposed to be terrible.

Well,Santorum wanted to go back. He thought that state legislatures should be allowed to ban thhe sale of contracpetives. Hhe wanted judges to be put on thhe Supreme Court who would overthrow Griswold so that could happen.


BTW I am not arguing that every decision from the Warren Court on has been great. I think some of the rulings from the seventies did go too far. However, the Court has already centered itself and the current controversy about Supreme Court nominations isn't about movinng from the left toward the right. It's about preventing a move from thhe center to thhe far, far righht.

Back on Rudy.

I know that OCSteve has thrown in the towel and this is not meant to be piling on, but didn't there used to be a sort of gentleman's agreement among the members of the Senate committee that, under certain circumstances, members of the other party could blackball some nominees. This is another reason why the center stayed where it was until Orrin Hatch ditched the agreement in 2003 when he took over the committee.

wmr: back in the days of the nuclear option, I wrote a post about the various ways in which nominees could be blocked in earlier days. There were a bunch of them, most ditched by the Republicans in the last few years. My favorite is Rule 4, which (I think) is theoretically still in force.

The post is here.

Anarch: This is simply wrong.

Nope. Someone who really, genuinely, sincerely believes that a fetus is a gift from God, would want those gifts from God taken care of and not aborted: to take it at its lowest, they would be fighting for a universal health care system for pregnant woman, for universal free provision of contraception to stop unwanted pregnancies, and - unless fetuses cease to be gifts from God when they stop being fetuses and are born - would want all those nasty socialist things that are so good for women and children: paid maternity leave for at least six months, free day care, free dietary supplements... free healthcare. Unless those concern for those "gifts of God" stops at the US border, they would be ferociously against the global gag rule, which prevents US funds from going to any health clinic that provides full health services to women.

But, nothing prevents people who use the language of "a fetus is a gift from God" but who really mean "I hate the idea that women get to choose for ourselves what to do with our own bodies" or "I hate the idea that women should be able to have sex and decide whether or not to get pregnant" or "I want more women to be forced to have babies they can't support so that they will have to give them up for adoption" from joining the Republican Party.

I see the defense of Roe as especially bad. The poorly reasoned, anti-Constitutional, power grab has been poisoning the US political sphere ever since it was made.

To put this remark into another context, and demonstrate the wonderfulness of those republican constitutionalist judges that would rescue us from this evil:

I see the defense of Bush v. Gore as especially bad. The poorly reasoned, anti-Constitutional, power grab has been poisoning the US political sphere ever since it was made.
____________

As for loathing Roe because of those evil penumbras, how about the Ninth amendment? There are a number of constitutional rights that you would also toss with this point of view, such as right to travel, right to refuse medical care, parental rights, etc.

You're factually wrong about that. Take homosexual sodomy laws for instance. By the time the Supreme Court got around to that, the laws had been changed in most states already and in order to get the test case, the guys had to effectively stage the arrest.

"Stage the arrest?" Where do you get your facts? Read the opinion Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence's apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct.

The person who phoned in the phony "weapons disturbance" complaint was also prosecuted, for making the phony complaint. He served 15 days in jail.

The law in question was re-enacted in 1973, and specifically rewritten and entitled the Texas "Homosexual Conduct" law -- which criminalized sexual intimacy by same-sex couples, but not identical behavior by different-sex couples. That was the modern trend regarding laws in this area -- not some fantasy that they were fading away.

Lawrence link fixed. Preview is our friend.

Given all of the talk about folks rushing from the port side of the political boat to starboard because of Roe v. Wade, I've decided U.S. politics requires a radical realignment, triggered along these lines:

I'm going to unionize all fetuses into a dues-paying shop affiliated with the Teamsters with the right to live, strike, demonstrate and stop production (think about it: a Republican President calling in the Pinkertons to break a few partially formed skulls), guarantee universal healthcare from conception thru death (perhaps even for awhile after just to make sure) and supply a government-guaranteed income for pregnant mothers and fathers, not to mention non-pregnant mothers and fathers who can't keep their hands off of each other. Yes, and we'll have National Sodomy Week, every other week, as a paid holiday.*

There are other planks in the platform, too, but that should be enough to garner 93% of the vote.

Hello?

Gary Farber:

Thanks for the links to your posts on Giuliani. I loved the fact that Rudy's Dad used to threaten him with attending public school as punishment, especially after learning that his Dad was a bit of a loan-shark and thug who could wield a pretty mean baseball bat, in the streets.

Nice, that. It reminds me of when Tony Soprano drove his daughter to her posh college and took time out on the trip to administer a "hit". Family values.

A big No! for Rudy for President. The bully wing of the Republican Party needs to be put to sleep permanently. Enough of the tough guys getting their way.

While Rudy's cross-dressing may qualify him to be Director of the F.B.I., I think the paramount issue before us is whether Donald Trump's hair, such as it is, is combed back or combed forward, or is it combed back after being combed forward? Is there such a thing as hair undertow?

Sorry, saw them both cavorting over Rudy's decollatage on the tube the other night.


* I'm anti-abortion but pro-choice on the matter and sodomy is fine by me. Well, not by me exactly, maybe a little further away, around the corner, and could ya keep it down. I've got my own problems.

There should be a surtax on sodomy and all other sexual play, hetero and otherwise to pay for various government functions, including securing the fetuses in Baghdad. I figure this is one behavioral area where tax disincentives are irrelevant.

Though I wouldn't be surprised if Larry Kudlow and the Wall Street Journal editorial page raged about the falloff in sodomy because of perverse incentives. Arthur Laffer would need a whole new napkin, edition #2, to explain it all to us.


National Sodomy Week

Oh, the white folks sod the black folks
And the black folks sod the white folks
To screw all but the right folks
Is an old established rule

But during National Sodomy Week
National Sodomy Week
Ted Haggard and David Brill
Are dancing cheek to cheek
It's fun to sodomize
The people you despise
As long as you don't let 'em in your school

Oh, the poor folks sod the rich folks
And the rich folks screw the poor folks
All of my folks euphemize all of your folks
It's American as apple pie

But during National Sodomy Week
National Sodomy Week
New Yorkers love the Puerto Ricans
'Cause it's very chic
Step up and shake the hand
Of someone you can't stand
You can sodomize him if you try

Oh, the Protestants sod the Catholics
And the Catholics sod the Protestants
And the Hindus screw the Moslems
And everybody f*cks the Jews

But during National Sodomy Week
National Sodomy Week
It's National Everyone-Lube-With-
One-Another-hood Week
Have sex with people who
Are inferior to you
It's only for a week, so have no fear
Be grateful that it doesn't last all year!

"That was the modern trend regarding laws in this area -- not some fantasy that they were fading away."

Except that Texas has for many years had a thriving gay community, and as the openly gay lawyer in the case said "In my 17 years practicing law, representing gay and lesbian people, I had never heard of anybody who'd been arrested and charged with this crime."

This was an abberation, worth correcting one way or another, but not the legal trend against gay people that you seem to imply. At the time, Texas was one of exactly 4 states to outlaw (even just on the books) homosexual sodomy.

hilzoy:

Thanks for the link. An excellent post, as usual; I'm sorry I missed it at the time.

Sebastian:

So how about that arrest being "staged?" As for the rest of your points, well...

At the time Lawrence was decided, 14 states, Puerto Rico and the military criminalized sodomy. 4 of those states limited the crime to homosexual conduct (this must be your reference).

People were being convicted in some of these states right up until Lawrence, and undercover cops were still posing as gays to then bust gays. In the link above are a number of links to various states that discuss this -- read, for example, the Kansas or Oklahoma links.

May I ask where you got the notion that the criminal prosecution in Lawrence was some sort of staged event, presumably to set up a test case? It is true that this type of anti-homosexual legal activity was ongoing in just a minority of states, but what makes you think it was dying out?

I know that OCSteve has thrown in the towel and this is not meant to be piling on

Yeah, I’m a wuss. I’ve had a long day by that time of the evening. Even accounting for ObWi’s worldwide readership scattered across time zones – I think there are some insomniacs hanging out here.

but didn't there used to be a sort of gentleman's agreement among the members of the Senate committee that, under certain circumstances, members of the other party could blackball some nominees. This is another reason why the center stayed where it was until Orrin Hatch ditched the agreement in 2003 when he took over the committee.

I assume you mean the blue slips, where traditionally, both Senators from the nominee’s state had to return a blue slip to the committee chairman before a hearing would be scheduled? Yeah that was Hatch. I don’t think it had to be from the other party, just one of the two home state Senators refusing to sign off. I think that they still use the slips but the wording that indicated nothing else would happen until it was returned was removed. It will be interesting to see if Conyers restores it.

But – are you arguing that allowed the court to drift to the right of center? The other viewpoint would be that it restored some balance of course. As I noted it is currently 4-4-1, Gary thinks that the center itself has moved to the right, but I don’t know how to evaluate that without doing a lot of research for the last 35 years and even then it would be very subjective. In any case, based on today’s definition of liberal and conservative, it seems pretty balanced IMO (the swing vote is a moderate Republican so it seems fair to say it leans right, or it may lean right. Now if Bush gets one more pick…)

Anyway, I think it was Pat Robertson praying for God to smite the liberals on the bench more than any blue slips of paper. That will teach them to legalize sodomy.

(I kid, I keeed…)

"Yeah, I’m a wuss. I’ve had a long day by that time of the evening. Even accounting for ObWi’s worldwide readership scattered across time zones – I think there are some insomniacs hanging out here."

I sure am without drugs.

I'm still hoping you'll get back to explaining what you think bombing Sudan will accomplish, though. That's a topic of far higher priority for me, at least, than debating the politics of SCOTUS. Up to you, of course, as YMMV.

And now I'm off to the supermarket, since it's the first day where the streets are reasonably walkable over the snow, rather than through many feet high of it, in two months, so you'll have an hour or two with no replies from me. :-)

"As I noted it is currently 4-4-1, Gary thinks that the center itself has moved to the right, but I don’t know how to evaluate that without doing a lot of research for the last 35 years and even then it would be very subjective."

I really don't think this is a remotely controversial opinion, but see what you turn up. Of course, the Warren Court is way left of where the Court was in the 1920s, but if you'd like to argue for a return to the standards of those days (Andrew seems to often imply that he would), go for it.

"In any case, based on today’s definition of liberal and conservative, it seems pretty balanced IMO (the swing vote is a moderate Republican so it seems fair to say it leans right, or it may lean right. Now if Bush gets one more pick…)"

You really can't discuss the topic without the context of the history; I mean, you can, but it would be ignoring history, and unhelpful.

"(I kid, I keeed…)"

Is that allowed if you're not a small puppet dog with a cigar?

OCSteve: Anyway, I think it was Pat Robertson praying for God to smite the liberals on the bench more than any blue slips of paper. That will teach them to legalize sodomy.

Pat probably thinks sodomy was more fun when it was illegal.

Pat probably thinks sodomy was more fun when it was illegal.

Tweeet! Offense foul – responding to a funny with something funnier. 10 minute penalty.

Someone who really, genuinely, sincerely believes that a fetus is a gift from God, would want those gifts from God taken care of and not aborted: to take it at its lowest, they would be fighting for a universal health care system for pregnant woman, for universal free provision of contraception to stop unwanted pregnancies, and - unless fetuses cease to be gifts from God when they stop being fetuses and are born - would want all those nasty socialist things that are so good for women and children: paid maternity leave for at least six months, free day care, free dietary supplements... free healthcare.

Nice idea, but not true. Most Christians in our biblebelt are of the 'god will take care of everybody in his own way' kind. No healthcare, no vaccination, women oblidged to stay home and take care of the kids...

On the other hand: our new government has finished their negotiotions (coalition governments always have those) and have a policy outline they all agree on. The three parties in the government are the slightly right of center christians (41 seats), labour (33 seats) and left of centre christians (6 seats). With this christian majority our abortion and euthanatia laws were held under scrutiny and they decided to put emphasis on preventing both through education and good acces to birthcontrol - no change in the laws.

Jes: Once again, you are wrong. This is not open to debate: you are simply and factually incorrect. Do not pass Go, do not collect $200.

[Or pounds. Or doubloons. Or the monetary equivalent of your choice.]

You're perfectly free to argue that your ideas are how it should be, or what it ought to be if people were consistent, or any of a myriad other alternatives. You can also argue, as I (and numerous others) have on occasion, that mixed in with these notions of "right to life" is a rather heavy dose of misogyny and opposition to sexuality of almost any kind. You can even, perish the thought, argue that these people are wrong. What you cannot argue, with any intellectual honesty whatsoever, is that these people do not believe what they manifestly do believe. And the sooner you realize this, the sooner you'll have a chance at actually effecting the change you desire.

OCSteve:

But – are you arguing that allowed the court to drift to the right of center? The other viewpoint would be that it restored some balance of course. As I noted it is currently 4-4-1....

As you pointed out, based on which party nominated, it should be 7-2. My point is that the blue slip, along with some real bi-partisan respect across the aisle, is at least part of the reason it is now 4-4-1.

PS: Consider the following argument:

Jesurgislac clearly doesn't give a crap about reproductive rights because, if she genuinely cared, she wouldn't write posts deliberately antagonizing the very people she should be trying to convince to change their policies. It's therefore irrefutable that while she uses the language of the pro-choice movement, she actually wants women to suffer and, as a happy coincidence, in the process she also achieves her desire of pissing everyone off.

This is structurally identical to the argument (really declaration) that you're making, and with about as much factual merit. I know this is unlikely to accomplish anything, but I'd ask that you ponder the duality here.

"May I ask where you got the notion that the criminal prosecution in Lawrence was some sort of staged event, presumably to set up a test case?"

I conflated it with some of pre-Lawrence attempts at a test case, I apologize for combining them in my head.

"People were being convicted in some of these states right up until Lawrence, and undercover cops were still posing as gays to then bust gays." A huge portion of this type of charging is tack-on for public indecency or solicitation charges--not sodomy stings. This makes sense, becasue to 'pose as gay' for a sodomy sting would involve rather more dramatic acts than for an exposure claim or a solicitation claim. Now many of these charges did (and frankly still do) have problematic components. But that isn't the same thing, they still go on, and they aren't particularly amenable to Constitutional solutions in a particularized way. (Maybe as a limiting of stings in general).

Gary:

"Of course, the Warren Court is way left of where the Court was in the 1920s, but if you'd like to argue for a return to the standards of those days (Andrew seems to often imply that he would), go for it."

The Warren Court was to the left of the American public as well (see especially abortion, obscenity and punishment theories). In my opinion they had a point about the difficulty of cutting obscenity from free speech in a clear way, and the proper way to deal with that is to defer to free speech. But that idea has very strong implications for campaign speech restrictions that ahem much of the more liberal wing of US politics aren't particularly fond of--and are happy to empower their lack of fondness through the courts.

But really I hate the idea that we have to categorize courts like this at all. I wish we could bother resolving Constitutional issues largely with reference to the Constitution and other poltical considerations with the legislatures, but that is just me. Courts shouldn't be left or right. They should be constitutionalist. Important issues that should be constitutional and weren't are amenable to the amendment process. Which so far as I can tell hasn't been seriously attempted in almost a generation.

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