1

Make no mistake, if Miers is appointed to the bench and refuses to overturn Roe we will have only ourselves to blame.

This strikes me as a "judicial activist" viewpoint.

If you really want Roe overturned, you need a Constitutional amendment.

Legally, it's a lost cause because there are too many women in this country -- and men who sympathize with those women -- who KNOW that the woman's right to terminate their own pregnancy is a fundamental one.

You can quibble about where the draw the lines of the state's interest but to legally find some sort of Constitutional "embryonic shield" is something that not even John Roberts can accomplish with a straight face.

2

"If you really want Roe overturned, you need a Constitutional amendment."

So why doesn't the anti-abortion movement do exactly that? They certainly were successful with another hot-button issue, gay marriage.

Is it because unless they are using prejudice to further their cause that they can't convince enough people that there is no such thing as a right to privacy? Why is it easier to convince people to outlaw gay marriage than it is to convince them to outlaw abortion?

3

As I've noted here, Bush's first priority has always been to himself and his cronies.

In going for "moral absolutism" on a single issue, you've ignored the wider moral ground in which those you vote for operate.

She might vote your fancy on "life issues" but the real reason she's in the spotlight is obvious to one and all: she's a crony of Bush's and Bush wants a "Bush seat" on the court, to join the "African American" seat, the "womens' seats,", and the "Jewish seats."

You get what you paid for.

4

Though Miers is, apparently, of my religious tribe in some respects, I have to agree with Mumon here. I'm uncomfortable with her nomination simply because it's such obvious cronyism. This is the kind of pal you nominate for Ambassador to Luxemborg, not for the Supreme Court. She may do for the definition of "crony" what Monika Lewinsky did for the defintion of ... well, you get the picture.

5

The basic theme of Joe's latest post is "this chick is one of us so her record (or lack of one) doesn't much matter". Talk about identity politics run amock!
Look at his previous post:
Why are the people who say they want an “originalist” and a “strict constructionist” on the bench whining about Miers qualifications? If you plan to legislate from the bench then it certainly helps to have a brilliant legal scholar. If you want someone who can interpret the Constitution the way it should be you just need someone who’s literate.

Funny, Bork, Scalia and even Thomas do not strike me as dimwitted judges. Whatever you can say about the originalist and/or strict constructionalist school the Constitution is hardly a straight forward document that can be interpreted by just anyone.

6

The basic theme of Joe's latest post is "this chick is one of us so her record (or lack of one) doesn't much matter". Talk about identity politics run amock!

Huh? I read Joe as saying exactly the opposite. Her status as an evangelical doesn't necessarily allow one to predict how she will vote on abortion issues, so her record or lack thereof is of great importance. How is that identity politics run amuck? The right wing seems to be bummed precisely because they worry that "identity" is insufficient, and they want more of a paper trail indicating her opinions.

I do wonder, though, what it says about evangelical churches when the right immediately takes a pessimistic view of someone, and the only data they have is that she's a long term member of an evangelical church.

7

Larry:
This strikes me as a "judicial activist" viewpoint.
Nope. Roe was the judicial activism, as Joe mentioned. What do you think he meant by this quote?
"Even the legal team from NARAL can’t keep a straight face while arguing that Roe is a legitimate precedent. Everyone admits that it was a bad law though some maintain that because it’s an old bad law that we should let it stand (abortion rights advocates are staunch defenders of tradition)."
Wanting Roe to be overturned is entirely consistent with opposing judicial activism.

If you really want Roe overturned, you need a Constitutional amendment.
That would only apply if the Constitution actually mentioned the so-called right to abortion, which it does not. Overturning Roe merely requires a Supreme Court majority that is willing to look beyond stare decisis (& imaginary "penumbras") and actually read the Constitution.

Legally, it's a lost cause because there are too many women in this country -- and men who sympathize with those women -- who KNOW that the woman's right to terminate their own pregnancy is a fundamental one.
Really? Then why does the country keep electing anti-abortion legislators? Why is nearly every state passing anti-abortion legislation just as quickly as the ink can dry? Even California (!!) has a parental notification referendum on the ballot....

You can quibble about where the draw the lines of the state's interest but to legally find some sort of Constitutional "embryonic shield" is something that not even John Roberts can accomplish with a straight face.
Actually, the 14th Amendment does mention that one's life cannot be taken without due process of law....

However, you're arguing a straw man. Overturning Roe does not require discovering a right-to-life clause in the Constitution. It merely requires realizing that there is no right-to-abortion clause in there. Then the abortion decision goes back to the States, just like it was pre-Roe. And it you really believed that so many Americans are pro-choice, then you wouldn't be bothered by that possibility....

8

Cronyism surely is a hallmark of the Bush presidency, and is a big change from the prior occupant of the White House. Why, I only need think back to sterling appointments like Webb Hubbell, who basically ran the Justice Department, to yearn for the years of quality selections.

And when I stop laughing at the suggestion that we need a constitutional amendment to overturn R v. W, I merely refer the jokester to the fact that SCOTUS has overturned itself hundreds of times (c.f. Plessy v. Ferguson and Brown v. Board of Ed.). It doesn't happen often, on a percentage basis, but to claim that the amendment process is the only way of doing it simply bares a profound misunderstanding of the law (that should have been learned in about the 7th grade).

Re: If you want someone who can interpret the Constitution the way it should be you just need someone who’s literate.

Does the phrase "towering naivete'" make sense? If not, you still get the picture. As a case study to learn why that quote is so supremely (sorry) silly, think deeply about the phrase "interstate commerce".

9

If you really want Roe overturned, you need a Constitutional amendment.

No, all you need is 5 Supreme Court Justices to decide that Roe was wrongly decided. Roe no more needs a Constitutional Amendment than Plessy ("separate but equal", overturned in Brown) did. If abortion had been enshrined in the Constitution as prohibition (18th amendment) had been, then a new Constitutional amendment would be required.

10

The problem with dismissing Roe as just something made up out of thin air is that it dovetails with the concept of a Constitutional right to privacy. While privacy is not specifically mentioned the 10th makes it very clear that the text of the Constitution itself is not an exhaustive list of rights. In other words, just because the Constitution doesn't specifically say Congress can't trample on privacy doesn't mean it can.

Without a privacy right you are opening the door to a massive amount of gov't intrusion into zones that most American's believe are truely private.

11

"Make no mistake, if Miers is appointed to the bench and refuses to overturn Roe we will have only ourselves to blame.... If the best we can say about an evangelical is that she 'brings donuts' rather than that she brings a passion for justice, then the blood of the innocent will be on our hands. We will have failed to fulfill the calling of the church. ...We know that being a member of a 'conservative evangelical church' may make you an evangelical, but it doesn’t make you a disciple."

Joe, this post borders on prophetic and typifies why you are a great blogger and (far more importantly) a great thinker. Your post brings a fresh, reflective, and crucially honest perspective to this issue (not to mention refreshingly non-partisan). Thank you for giving me an intelligent and redemptive way to talk about this nomination at church.

12

Again overturning Roe is equated with ending abortion. A rather heroic assumption.

13

Why did President Bush nominate Harriet Miers for Associate Justice of the U.S. Supreme Court?

For two reasons.

First, because she is eminently qualified. She has a long and distinguished record of service in both the public and private sector. She was the president of a major law firm, and she has served as counsel to Bush, first when he was governor, and then as president.

Second, because she is a staunch legal conservative who was personally suggested and recommended by Senate Minority Leader Harry Reid!

It is a no-brainer, in other words.

The only real apparent objection is that Ms. Miers is a "crony" of President Bush. I'm sure the Senate Democrats will be sorely tempted to take this tack when they realize how badly President Bush has hoodwinked them.

Unfortunately for Reid and company, a true crony has to be either incompetent or corrupt, and Ms. Miers is neither. Ms. Miers will be confirmed, and the Democrats will just have to suck it up.

14

The problem, as I understand it, is not that Roe is a questionable ruling; it's that Griswold is. If Griswold is accepted, then Roe simply follows. You can't really knock down Roe without taking down Griswold, and taking down Griswold, as I understand it, would have far wider implications than just abortion. (Implications which most would not like.)

15

A few interesting questions. If no right to privacy exists as per Griswald then what would prevent say a gov't mandating pregnancy & birth as part of population planning? (see A Handmaiden's Tale for a sci-fi example)? How about mandatory organ/blood donation (I suppose Jahova's Witnesses might still call upon the First to get them out of that)?

Even more dramatic what about mandatory abortions as per China? Remember the argument is not to bring fetuses under 14th amend. protection but to establish abortion as a regulatory perogative of the state. Bill Bennett is on record with the belief that abortion black children would bring down the crime rate (he rejects this as a policy solution, though, because he consideres it immoral). Why wouldn't a state be permitted to mandate abortion as well as prohibit it?

It's important to note that Germany and Italy did not just use the state to 'clean' the population of undesirables, they also aggressively promoted pregnancy and birth for 'desired races'. I don't know offhand but I wouldn't be surprised if abortion was illegal when the baby and woman were of the Aryan race.

16

I have no doubt that Harriet Miers has a spine of steel and the highest personal integrity.

When Harriet fought to have the ABA's proposed stance on abortion brought to a member vote, and that initiative failed, I withdrew from the ABA. I perceived her battle as one against activism and for representative fairness, and I hoped (without proof) it also represented a prolife stance. She certainly represented my position.

The issue I see with Roberts and Miers is not their moral courage, but their very fairness and LACK of activism. Stare decisis is meaningful to them for stability and predictability in the law, and thus in the conduct of society, business and personal lives. Roe is part of a legal web -- with far reaching sticky tentrils -- built over the past century's development of a protected zone of privacy. Americans fundamentally disagree about the size and shape of that zone, but few would argue that it does not exist. To overturn Roe would disturb the web, and when it comes down to it, even evangelicals might rather protect the entire web than threaten their favored zone (contraception, marriage, artificial conception, stem cell research, etc.).

It's been done before, as Joe pointed out, but it is a bold stroke and may require a more activist mindset than we see in the anti-activist (so far) Roberts and Meirs.

That said, if the right case came along -- particularly with 30+ years' scientific evidence about life in the womb and studies of the effects of abortion -- moral courage should count.

17

Gray:
I have no doubt that Harriet Miers has a spine of steel and the highest personal integrity.

A spine of steel doesn't matter much if Miers has a lot of weak reasons for her beliefs. If that is the case she will be more likely to cave to the pressure to conform to a more liberal stance.

Good post Joe. VVCC looks just about like every other purpose driven schlubby... well, at the least, every other successful purpose driven schlubby. They might not be purpose driven, but I am inclined to believe they are since they include a floor plan as one of the first pages you can visit. :)

18

Joe C

"Even the legal team from NARAL can’t keep a straight face while arguing that Roe is a legitimate precedent. Everyone admits that it was a bad law

Both claims are false. Enough said.

As for Miers, I should make it clear: I know nothing about the woman except that she apparently worships President Bush. That's a dubious personal characteristic in my book.

I'm sure she's a fine lawyer.

I have no reason to believe she would make a good Supreme Court judge. On the other hand, I don't see how she could be more useless than Clarence Thomas, who is an utter disgrace, or more toxic than Scalia, who at least contributes intellectually to the arguments before the Court.

Unless Miers has some smelly dirt in her closet, she will be confirmed.

Sadly for ultraconservatives, however, that isn't going to make a whole lot of difference. If, by some bizarre turn of events, a woman's right to terminate her pregnancy is found not to be a fundamental right, Americans will understand it is ONLY because two of Bush's cronies were put on the court for the sole purpose of destroying that right.

Do you think the majority of Americans will appreciate that?

Remember: most Americans support keeping abortion legal.

I don't want to see religious extremists get what they wish for. But I have no doubt that their holiday will be very short-lived indeed.

19

If no right to privacy exists as per Griswald then what would prevent say a gov't mandating pregnancy & birth as part of population planning? (see A Handmaiden's Tale for a sci-fi example)? How about mandatory organ/blood donation (I suppose Jahova's Witnesses might still call upon the First to get them out of that)?

Boonton--Let's go the other way, if there is a virtually unlimited right to privacy, how does government legislate against drug use or prostitution?

Even more dramatic what about mandatory abortions as per China? Remember the argument is not to bring fetuses under 14th amend. protection but to establish abortion as a regulatory perogative of the state.

Isn't this a bit of a stretch? The government regulates the highways and airlines, but that doesn't mean they can compel me to drive or fly. They also regulate the practice of medicine, but that doesn't mean they can compel me to have the large, hairy wart removed from the tip of my nose, even though it frightens small children and animals, which are also heavily regulated.

Remember: most Americans support keeping abortion legal.

Larry--That's a bit misleading. If you include exeptions for rape, incest, and life of the mother, most would support significant restrictions. Most certainly don't support allowing 13-14 year olds to get abortions without parental consent.

20

Interesting how Joe and others here give lip service to 'strict construction and 'original intent' but are willing to toss principle overboard and adopt judicial activism (defined here as doing something based on what one feels is right). The primary reason given for overturning Roe is 'abortion is wrong'. (Naaman is an exception here). Granted Joe also believes Roe was bad law but notice the primary reason he feels a judge should overturn it is because the judge should apply his moral opinions to abortion...not the law. If some lost diaries turn up indicating that the founders really did want abortion covered by the Bill of Rights does anyone think Joe would change his mind in the name of originalism?

This isn't the first time contructionalists have flinched in their philsophy. When pot (for medical use) came before the court the 'originalists' adopted the most expansionary reading of the commerce clause imaginable giving the Fed's priority over just about any economic activity they want.

21

ucfengr

"That's a bit misleading."

Hardly. It's a fact very much worth remembering when the religious extremists who push this issue claim that abortion is "murder."

"If you include exeptions for rape, incest, and life of the mother, most would support significant restrictions. Most certainly don't support allowing 13-14 year olds to get abortions without parental consent."

Let me get this straight: when a kid is raped and gets pregnant, she needs her parents' consent to abort the baby?

I don't think so, my friend.

22

"When pot (for medical use) came before the court the 'originalists' adopted the most expansionary reading of the commerce clause imaginable giving the Fed's priority over just about any economic activity they want."

Ironically, good ol' Clarence was the most "consistent" originalist on this issue, as I recall.

23

Boonton--Let's go the other way, if there is a virtually unlimited right to privacy, how does government legislate against drug use or prostitution?

Fair enough, I suppose a 'runaway right to privacy' may end up legalizing drug use and prostitution. Although prostitution is an economic activity between at least two people so if you read it as being covered by privacy you'd have to read a basically libertarian party economic platform as part of a right to privacy. Ditto for drug policy.

I'm not a libertarian but generally I think the Founders were right to worry about too few restrictions on gov't's rights than too many.

Isn't this a bit of a stretch? The government regulates the highways and airlines, but that doesn't mean they can compel me to drive or fly. They also regulate the practice of medicine, but that doesn't mean they can compel me to have the large, hairy wart removed from the tip of my nose, even though it frightens small children and animals, which are also heavily regulated.

Is it? At one time the gov't did do mandatory sterilization for people with mental illnesses & retardation justified by 'Social Darwinism'. I already cited Bill Bennett as proof that the idea of 'abortion solves some social problems' is in the air. It would be a stretch in today's political climate but can you be so sure about 30, 40, 50 years down the line?

Do you really want to committ yourself to saying there is no Constitutional barrier to the gov't doing such things? That we just must rely upon the hope that it would never be popular with the voters?

Larry--That's a bit misleading. If you include exeptions for rape, incest, and life of the mother, most would support significant restrictions. Most certainly don't support allowing 13-14 year olds to get abortions without parental consent.

Question, if parents can veto abortions for their 13-18 year olds then why not births as well? How many parents would insist on their teens having abortions rather than 'ruining their lives' by carrying their children to term?

24

Why is it the religious right wing of the R party believes that their "rights" are the ONLY rights?
When did it become your business to police the conscience of humankind? A human being's most personal and private matters are just that. Further, they are between him/her and God alone.

That's explicitly WHY the founders made plain the importance the separation of church and state!!!

WHY IS THIS SO DIFFICULT FOR THE RIGHT WING ZEALOTS TO UNDERSTAND!?

Stay out of my bedroom and my womb. You've no RIGHT there. Leave the "judging" up to Almighty God.

Universal Declaration of Human Rights

Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948

On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights the full text of which appears in the following pages. Following this historic act the Assembly called upon all Member countries to publicize the text of the Declaration and "to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories."

PREAMBLE
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article 1.
All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3.
Everyone has the right to life, liberty and security of person.

Article 4.
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6.
Everyone has the right to recognition everywhere as a person before the law.

Article 7.
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9.
No one shall be subjected to arbitrary arrest, detention or exile.

Article 10.
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11.
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13.
(1) Everyone has the right to freedom of movement and residence within the borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 14.
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.

(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15.
(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16.
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17.
(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

Article 18.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20.
(1) Everyone has the right to freedom of peaceful assembly and association.

(2) No one may be compelled to belong to an association.

Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

(2) Everyone has the right of equal access to public service in his country.

(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22.
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23.
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

(2) Everyone, without any discrimination, has the right to equal pay for equal work.

(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24.
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25.
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26.
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27.
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28.
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29.
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30.
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

http://www.un.org/Overview/rights.html

25

Thanks, more cut and paste comment spam. Perhaps we can give you and Terrance your own blog to waste bandwidth on.

26

if parents can veto abortions for their 13-18 year olds then why not births as well? How many parents would insist on their teens having abortions rather than 'ruining their lives' by carrying their children to term?

Boonton--The right to restrict doesn't necessarily grant the right to impose. For example, a minor child needs parental consent to get breast implants (some legal eagle could confirm this please), but that doesn't mean the parent has a legal right to force the child to get implants to improve her chances of becoming Miss America.

Thanks, more cut and paste comment spam. Perhaps we can give you and Terrance your own blog to waste bandwidth on.

Couldn't agree more, I hate it from either side.

Let me get this straight: when a kid is raped and gets pregnant, she needs her parents' consent to abort the baby?

Larry--Why would you not want the parents (assuming the father was not the rapist) involved in a case like this? I can't imagine any rational reason for not mandating parental consent, or at least notification especially in a case like this.

27

Why would you not want the parents (assuming the father was not the rapist) involved in a case like this? I can't imagine any rational reason for not mandating parental consent, or at least notification especially in a case like this.

Dang, man, why must you keep slippin' and slidin'?

Did I say I didn't want the parents involved?

Nope.

As for the issue of consent, it's straightforward: the idea that a raped 13 year old would be forced to give birth to a baby resulting from the rape simply because the 13 year old's parents had been convinced somehow that "abortion is murder" repulses me -- and most other civilized people, I'm quite certain.

28

Boonton--The right to restrict doesn't necessarily grant the right to impose. For example, a minor child needs parental consent to get breast implants (some legal eagle could confirm this please), but that doesn't mean the parent has a legal right to force the child to get implants to improve her chances of becoming Miss America.

Actually this might be less obvious than you think. Suppose a parent wants a teenage child to undergo an operation to correct a deformity. The child refuses. It isn't obvious how the courts would rule. In your example I would imagine the primary check would come not from the courts but from the doctors who would refuse to operate and child welfare agencies that might view the above as exploitation.

As we know, though, there are plenty of parents who would 'hush up' an unwanted pregnancy with an abortion. This was the case before and after Roe.

29

Larry,

"As for the issue of consent, it's straightforward: the idea that a raped 13 year old would be forced to give birth to a baby resulting from the rape simply because the 13 year old's parents had been convinced somehow that "abortion is murder" repulses me -- and most other civilized people, I'm quite certain."

The issue of consent is not so straightforward as you suppose. If abortion IS murder (and you must admit that there are good reasons to suppose that it is), then it is not automatically justified as a means to ease the hardship of rape. You can go ahead and claim the moral high ground by asserting that you and only those who think like you are "civilized," but all you're saying is that the murder of an innocent victim somehow can bring closure and healing to a rape victim. If the rapist is caught, by your "civilized" rational, perhaps we should just have the victim murder the rapist? Is this how the judicial system should work?

30

Actually the legal question in my opinion comes down to what extent the state can force an individual to take on the burden of another (even if that individual is as innocent as can be). For example, if I happened to have a rare bone marrow that would save someone's life the state cannot force me to donate it...even though my decision to say no effectively condemms another to death.

The typical response to this is that behavior (such as sex) acts as a type of 'implied consent'... Obviously rape would not fall under this category. What's somewhat ironic, though, is that if you want to hitch yourself to a 'implied consense/responsibility' argument then you have to deal with the awkward fact that a 13 year old is less able to accept adult responsibilities than a 19 year old...rape or consensual sex. This heads towards a direction where abortion is legal for younger people but not older....discuss!

31

The typical response to this is that behavior (such as sex) acts as a type of 'implied consent'... Obviously rape would not fall under this category.

Sex with a 13 year old is rape, by statutory definition.

You can go ahead and claim the moral high ground by asserting that you and only those who think like you are "civilized,"

Thank you! That ground has, in fact, already been claimed and me (and people like me who share the majority view that aborting a fetus is not murder) are quite pleased.

but all you're saying is that the murder of an innocent victim somehow can bring closure and healing to a rape victim.

No, I'm saying that aborting a fetus that resulted from the rape of a 13 year old is a safer, cheaper, and psychologically healthier way for the 13 year old to start getting on with her life. And pretty much every educated person who objectively considers the facts -- you know, reality and not supernatural stuff -- agrees with me.

I'm ignoring the fact that some people will choose to get in this girl's face and try to convince her that by having the abortion she is "angering God" and risking unbelievable pain in the fiery pits of hell after her "life on earth" ends.

I'm ignoring that fact because such people are to that girl's mind what the rapist was to her body.

32

Roe was bad law. Most constitutional scholars agree. Even Roe herself repudiates it. Prima facie evidence it is bad law: every SCOTUS nomination since has been, basically, about Roe. It has poisoned the political air in DC, just as the Dred Scott decision did.

Roe, at this point, would be difficult to overturn. Stare decisis is more than a philosophical issue; it can be extremely difficult to disentangle years of law that has built on a decision. A previous poster, who sounds like someone with legal training, makes this point most eloquently.

On the other hand, when Roe was decided, a woman could already get an abortion in New York and several other states. Legislative law was moving in that direction. SCOTUS would be well-advised to look at the differences in public reaction to gay unions in VT/CT and MA to see the corrosive effects of judicial arrogance.

An interesting commentary on Miers points out that the Kos kidz are already denouncing her as a... lesbian. Now that's interesting. Sometimes I wonder if there are any actual thoughts in the heads of that crowd, or whether they are simply a gaggle of left-wing parrots with about 200 phrases they can string together in various combinations. It's probably a blessing that they give them signs and slogans to carry while they're tying up traffic and preening for the media. I'm sure they need to be reminded why the're there. But I digress.

Anyway, the linked commentary above points out a major issue that has been ignored because of the bloodlust for infants. Miers is a businesswoman. She is not your usual civil service employee or academic pharisee. I recall reading an editorial by George McGovern (many years ago so it probably isn't archived on the 'net) saying that had he owned a business before he served in the Senate, he would have voted differently on many bills. You see, McGovern bought some CT hotel properties, had to meet a payroll on Friday and the tort bar in court, and got a very sweet taste of the medicine he prescribed. Where are the diversity parrots when a chance for diversity arises?

33

Again overturning Roe is equated with ending abortion. A rather heroic assumption.

As much as I want to see abortion-on-demand ended, this statement is correct. All that an overturning of RvW would result in is the status quo ante, the condition of 50 individual state laws in 1973.

34

Joe,
There are a couple of really big problems with your post...
1) All the support for Miers is grounded on other people vouching for her. This is a really bad position to take, as it shows that the nominee is not able to stand on her own record. More, this strategy has yielded some really, really bad nominees in the past, like David Souter.

2) That Miers ought to vote to overturn Roe based on her faith. ("If after spending a quarter of a century in the church, a Christian woman can uphold the most unjust ruling since Dred Scott, then we have failed as a church.") This is truly bad. If faith is to be the basis by which judges do their job Scalia ought to be pushing for the institution of Canon law. No, Miers should be voting against Roe because it was terribly decided.

In addition to this we are forced to confront the fact that Miers is not in fact qualified to sit on the highest court in the land. She has never practiced constitutional law, argued a case before the Supreme Court, served as a judge, clerked for a judge concerned with constitutional law (i.e. Circuit or Supreme Court), or published a serious legal study.

I know people say that she has been a trailblazer, led a major law firm, and served as the head of the ABA. That's all well and good, but none of those are qualities that make a good judge, much less a Supreme Court judge.

More, we have no evidence about which way she would rule in a given case. For those of us looking for Thomist and Scalian judges this constitutes a terrible gamble. There is no evidence that, when weighing the merits of a given case, she would take an originalist approach. Indeed, her support for the international criminal court suggests that she would look to international law--a decidedly un-originalist view.

Still more, the decision to go with a stealth nominee avoided a discussion this country badly needs: one about the nature of our judiciary. Should they look to international law? Should judges strictly interpret the constitution, or find whatever it is their beliefs compel them to find? These are serious questions whose answers determine where America will go, and W shamefully ducked the discussion.

Miers may be a fine Christian, but she is a terrible pick for the Supreme Court.

35

Roe ... was terribly decided.

Some of you keep repeating this as if it were unanimous opinion when it's far from it.

Why not reverse Brown v. Board of Education as well if you're so offended by Supreme Court decisions that deride the undisputed "intent of the framers" without a clear literal Constitutional foundation?

Brown v. Board is the ultimate "activist" decision and we all know that a whole lot of white Southern self-identifying Christians HATED IT.

Now the white Southern Christians in those former slave-holding states -- the same states that elected George Bush -- seek to stack the court with idealogues who share the religious beliefs of small but extraordinarily vocal and propagandistic minority.

How have the gotten this far? Money and fear-mongering, of the "we're all gwine to hell in a hellbasket if don't stop murderin' babies and promotin' gay sex" variety.

Here's a little exercise for you all: go online and find the AUDIO transcript of the arguments for Roe v. Wade. Step into the time capsule and listen to the misogynist garbage uttered by the attorney for Wade.

You simply can not "turn the train around" with rhetorical tricks, as Philip Johnson would have you believe. You can fool some of the people some of the time, as Karl Rove has proved over and over again, but when you go too far you reap the wind. The blowback is ferocious.

You should ask yourself: do you really want the United States as a country to engage in a national dialogue as to whether, in fact, religion has been allowed to influence public policy FAR TOO MUCH given that the claims of religion proponents are based on faith, not facts?

Rest assured that on the day that Roe v. Wade is voided and half the country's right to privacy is severely diminished, there will be -- ahem -- hell to pay.

Of course, that's never going to happen, but it's useful to understand why.

In other news, I read today that Roy Moore has presidential ambitions. That's a sign that a certain extremist segment of the US population is getting ready to drive off the edge of the cliff ... again.

36

As Chris Matthews said of Bill Kristol: You need a pill or something?

37

2) That Miers ought to vote to overturn Roe based on her faith. ("If after spending a quarter of a century in the church, a Christian woman can uphold the most unjust ruling since Dred Scott, then we have failed as a church.") This is truly bad. If faith is to be the basis by which judges do their job Scalia ought to be pushing for the institution of Canon law. No, Miers should be voting against Roe because it was terribly decided.

Why was it terribly decided? Because it belonged to the "Make A Wish" school of jurisprudence? Yes, but that's not all.

Roe was also terribly decided because it led to 40+ million deaths, untold numbers of damaged "patients", and some of the worst injustices to ever be perpetrated in the United States of America. It is the American Holocaust.

You can't separate the legal trainwreck from the damage it caused. Just like Plessy, a bad decision about the law has wreaked considerable damage on our country. If, as Joe wrote, Harriet Miers refuses to remedy that damage, then it is yet-another sign of the failings of today's Church. Christians are supposed to have a better sense of justice than unbelievers, remember?

38

Et tu, Dubya?

39

So this is my question, Naaman: do you believe that if Roe is overturned, it's going to include a reference to "40 million deaths" or an "American holocaust"?

I don't recall that sort of rhetoric appearing in any of the abortion decisions that followed Roe but I admit to not having memorized them.

But I agree that absent an argument like that, it's going to be very difficult to take a legal opinion that reverses Roe seriously.

Hence, I predict that you will continue to be frustrated. I must admit that if I were you and I honestly believed that an "American Holocaust" was taking place under my nose I would be doing something much more, um, heroic about it besides whining on a blog.

Just like Plessy, a bad decision about the law has wreaked considerable damage on our country.

Why bring Plessy into it? Nothing about "separate but equal" laws was unconstitutional on its face. Men and women have separate but equal bathrooms to this day (sort of -- women still have to wait in longer lines a lot of times).

Recall that human beings widely believed that "coloreds" were inferior to white people in some critical ways. In fact, some people continue to believe that today and maintain that science proves them right! Books are written about the subject. Some of those people self-identify as Christians. Believe it or not -- that's reality for you.

If, as Joe wrote, Harriet Miers refuses to remedy that damage, then it is yet-another sign of the failings of today's Church.

Remind me again -- why are there so many different religions?

40

Larry Lord:

When and if Roe is overturned, it will not be on the basis of "faith, not facts." The tables will be turned. The case will turn on (1) scientific evidence (2) longitudinal studies, including demographics, and (3) the facts of the case. Pro-Roe arguments will be based on philosophy and ideology -- in other words, faith.

41

God bless that Miers. May the Lord smite the evildoers. God bless America.

42

The common comparison that is being made is between Roe and the Dread Scott case, yet ironically Dread was not 'unjustly decided'. It was perfectly reasonable for a pre-Civil War judge to conclude that the Constitution was written to protect slavery and hold slaves to the status of non-citizen. After all, the Constitution basically did just that until the post-Civil War amendments abolished slavery and established birth in the US as automatically granting citizenship.

Dread didn't cause the tension between the states, that had been building since the Founding and if Dread had abolished slavery using some novel Constitutional theory it was unlikely that it would have been respected as law.

As for abortion. First of all how come Roe is responsible for 40 million abortions but no one mentions pre-Roe abortions? Another case of pro-lifers not really worring about abortions but only legal abortions. Second overturning Roe will not return the status quo of 1973. 1973 is gone and we live in a new world today.

For example, see http://www.nytimes.com/2005/10/02/weekinreview/02leland.html?oref=login. There are now several prescription pills that are used for abortions as an 'off label use' (meaning the drug is primarily used for some other use approved by the FDA...drug companies cannot market drugs for uses that are 'off label' but doctors can prescribe them).

In Brazil, where abortion is banned except in rare circumstances, misoprostol is the method of choice for up to 90 percent of all abortions, said Alessandra Chacham, a professor of sociology at the University of the State of Minas Gerais, who studies reproductive health in Brazil. In the late 1980's and early 1990's, she said, pregnant women started to spread the word, because the drug's label warned that it could cause miscarriages. Compared with illegal abortions using other methods, the rate of infection with misoprostol was 12 times lower, researchers have found. But researchers at the University of Rio de Janeiro reported that they also found that among babies born with certain birth defects, a high percentage of the mothers used misoprostol. When the government in response restricted access to misoprostol, drug smugglers created an illegal black market, Ms. Chacham said.

I guarantee overturning Roe and banning abortion on the state level will leave pro-lifers...for the most part...feeling victory. Like Brazil there will be no serious crackdown on this and I doubt one would be possible. Abortion may very well continue at the same or even greater pace than before but the consequences of it will be worse.

43

Another case of pro-lifers not really worring about abortions but only legal abortions.

Isn't this a little like saying a death penalty opponent only worries about "state-sanctioned" murder, not the ones that occur during the nightshift at 7-11?

Second overturning Roe will not return the status quo of 1973. 1973 is gone and we live in a new world today.

This is true, but overturning Roe would force "we the people" to take a hard look at the current "conception to one second before birth for any reason or no reason" status quo. Most people would be amenable to restrictions on children getting abortions without parental consent and post-viability abortions for reasons other than the saving the mother's life.

Abortion may very well continue at the same or even greater pace than before but the consequences of it will be worse.

I can't imagine any scenario in which restricting abortion would increase the rate beyond what it currently is. To use an analogy from the "drug war", many people want to keep drugs illegal because they fear de-criminalizing it would cause an increase in use, not a decrease.

44

Isn't this a little like saying a death penalty opponent only worries about "state-sanctioned" murder, not the ones that occur during the nightshift at 7-11?

Yea except I thought pro-lifers were actually pro-life...not just pro-altering a law without regard to what happens in the real world. Thanks for the correction. BTW, for the analogy to hold you'd need 'state sanctioned abortion'....to date I'm not aware of any gov't in the US that actually sanctions abortion but there are some who, if they had their way, would have the state encourage or even mandate abortion for some people.

I can't imagine any scenario in which restricting abortion would increase the rate beyond what it currently is. To use an analogy from the "drug war", many people want to keep drugs illegal because they fear de-criminalizing it would cause an increase in use, not a decrease.

There have been real life cases where getting rid of abortion restrictions has lead to an overall decline in the abortion rate. I think some examples would be Eastern Europe. I can see reasons why the abortion rate would be uneffected by Roe. Some states could become 'abortion meccas' taking in women wanting abortion who have some money while unregulated 'do it yourself' abortion happens for poorer women in those states that want to capture the pro-life label. What's striking is that while stories of the dangers of 'back alley' abortions were often exagerrated pro-Roe the reality is that pre-1973 back alley abortions were more dangerous than back alley abortions would be today.

I agree that it's hard to imagine a scenero in which restrictions on abortion cause an increased rate but I can see how abortion rates might not be effected much by being technically illegal. Several factors to consider:

1. Abortion is often done by a person to preserve the status quo. Drug use is often a deviation from the status quo. It should be easier to deter a person from drugs yet there is widespread disregard for drug laws....especially when the drug use is thought to be harmless (i.e. pot).

2. The overturning of Roe will be seen as a victory by pro-life forces. That alone will cause them to loose some of their ranks. Achieving state victories will further dwindle their ranks. Many will likely turn their attention to other issues (right to die cases, stem cells and so on).

3. There will NOT be a lot of pressure to devote serious law enforcement resources to abortion. Most people think of drug addicts and dealers when they think of drugs (even if they or their family members sometimes use them). It's easy to convince voters to put money behind law enforcement there. Many, many, will view girls getting abortions as a tragedy but not a crime. If pro-lifers are logically consistent they will treat those who have abortions as murders which will just intensify the desire to spend law enforcement dollars elsewhere.

4. Of course the problem will quickly become hidden. Even right now it is pretty hard to get a handle on how many abortions are done per year. All we really have is estimates since there is no central abortion registry that records every abortion like live births are recorded and summarized by departments of vital statistics. It will become easier for the abortion rate to increase but for politicians and others to exercise willful ignornance since detecting an increase will become more difficult. If detecting an increase is harder then it follows that it would be harder to convince voters for the need to do something about it. I can just imagine some post-Roe President Bush type declaring victory on behalf of pro-lifers and dismissing evidence of increased abortions in the same way global warming is dismissed today or in the past the danger of leaded gasoline was dismissed.

45

My question to the fundamentalists: did President Clinton consult with Richard Dawkins before nominating Ginsberg?

http://www.nytimes.com/2005/10/04/politics/politicsspecial1/04conserv.html?ex=1286078400&en=bdab4e4e38131a8d&ei=5090&partner=rssuserland&emc=rss

"Some of the efforts evidently bore fruit. By day's end, Mr. Dobson, one of the most influential evangelical conservatives, welcomed the nomination. "Some of what I know I am not at liberty to talk about," he said in an interview, explaining his decision to speak out in support of Ms. Miers. He declined to discuss his conversations with the White House.”

I can't wait for the Senate hearings to hear what Preacher Dobson was told.

46

Isn't this a little like saying a death penalty opponent only worries about "state-sanctioned" murder, not the ones that occur during the nightshift at 7-11?

I thought about adding something to the effect that I thought neither position was true, but I couldn't word it the way I wanted it to, so I left it off.

Yea except I thought pro-lifers were actually pro-life...not just pro-altering a law without regard to what happens in the real world.

I think pro-lifers would be very concerned with illegal abortions, if there were any. Is there any form of abortion that is illegal in the US? I don't think we've been able to get "partial birth" abortion restrictions upheld in the courts yet (though I could be mistaken and I'm too lazy to look it up).

If pro-lifers are logically consistent they will treat those who have abortions as murders

Logical consistency would require listing abortions as a homicides, not a murders. Homicide is a much broader classification, covering murder, manslaughter, and even self-defense killings. This would allow significant latitude in setting punishment and enforcement priorities. For example the punishment and priority would probably be higher for individuals providing abortions to underage girls.

The overturning of Roe will be seen as a victory by pro-life forces. That alone will cause them to loose some of their ranks. Achieving state victories will further dwindle their ranks.

You are probably right here, but didn't the same happen to the anti-slavery, prohibition, and civil rights movements?

Bottom line is none of your points concern me very much. I would be willing to risk even your worst case scenario to get Roe overturned. If it did turn out as you suggest, we could always revisit it legislatively, which is where I think the abortion issue should be handled.

47

Logical consistency would require listing abortions as a homicides, not a murders. Homicide is a much broader classification, covering murder, manslaughter, and even self-defense killings. This would allow significant latitude in setting punishment and enforcement priorities. For example the punishment and priority would probably be higher for individuals providing abortions to underage girls.

Why? Besides you dodged the point. There is likely to be broad public sympathy for women who have abortions, underage or not. It is unlikely that the public will have much stomach for prosecuting them the way women who kill their born children are prosecuted. We already see this in the pro-life movement today when it attempts to adopt sometype of feminist-chic pose by asserting that abortion is 'men taking advantage of women'.

Bottom line is none of your points concern me very much. I would be willing to risk even your worst case scenario to get Roe overturned. If it did turn out as you suggest, we could always revisit it legislatively, which is where I think the abortion issue should be handled.

Which is a different argument (that argument I addressed in my previous post concerning a right to privacy and the consequences of getting rid of it). If you take the pro-life arguments seriously then legislatures shouldn't be able to revisit the issue. Not treating abortion as any other homicide would itself be a violation of the 14th amendment. Only if a state choose to legalize all homicide could it really 'handle' the issue in the flexible manner you suggest.

48

ucfengr

"I think pro-lifers would be very concerned with illegal abortions, if there were any. Is there any form of abortion that is illegal in the US?"

Are you suggesting that my mistress in Alabama can terminate her 8-month pregnancy legally? We wanted a boy but it turned out to be a girl.

49

http://en.wikipedia.org/wiki/Abortion_in_the_United_States might be a good place to start. There's already a host of states that have waiting periods, 'informed consent' and parental notification.

An interesting test is to see if there has ever been any prosecutions in any of these states for violating those various laws. If there hasn't then two conclusions are possible:

1. there's 100% compliance
2. there's little interest in prosecuting violations.

Either one is possible. I don't see why an abortion doctor would risk his license just to dodge a waiting period. On the other hand I don't expect that restrictive states have any type of elaborate enforcement resources in place.

If pro-life states cannot even enforce minimal restrictions then why expect them to enforce bans in a post Roe world where you admit the pro-life movement will have less power and influence due to losing members who think the battle is over and won?

50

Why? Besides you dodged the point. There is likely to be broad public sympathy for women who have abortions, underage or not.

I don't think I did, I was pointing out that not all homicides are murder and there is some flexibility as to how we classify abortions. I don't think there would be broad support for legally classifying a confused 15 year-old as a murderer for having an abortion, there may be more support for classifying the abortionist as such, but again that can be resolved through the legislative process, where "we the people" have more influence. As to the "broad support", you are partially right, most favor abortion in certain defined circumstances, i.e. rape, incest, life of the mother, most would not favor Larry Lords hypothetical mistress.

Are you suggesting that my mistress in Alabama can terminate her 8-month pregnancy legally? We wanted a boy but it turned out to be a girl.

I don't know of any legal reason why she couldn't in any state. To my knowledge, your hypothetical mistress could wait until she went into labor, have the child delivered feet first and if she doesn't see a penis, have the child aborted before delivery is completed. Haven't you ever heard of "partial birth abortion" aka dilation and extraction?

51

ucfengr

I don't know of any legal reason why she couldn't in any state.

Um, well according to a case called Planned Parenthood v. Casey, states may restrict access to abortion in the third trimester as long as they provide exceptions for rape, incest and the health of the mother (that's from memory, in case I've missed something).

So why hasn't Alabama passed a law which recites the language used by the Supreme's in Casey?

Hmm?

52

Preacher Dobson again:

"I believe in trusting this president and this time because of the stand that he has taken and the way he has implemented it consistently for four and a half years. When you put that with all the other information that I have been able to gather - and you'll have to trust me on this one - when you know some of the things that I know, that I probably shouldn't know, that take me in this direction, you will understand why I have said, with fear and trepidation, why I have said why I believe that Harriet Miers will be a good justice."

53

Thanks for all the posts. I finally get it now, if I kill my wife in our bedroom or a doctor's office, it's none of the states business.

54

I would have re-nominated Bork, and if they re-Borked, Bork, a legal genius, then come back with a Miers, to show them what they are missed.

55

Folks, myopia is a dangerous thing. All I'm reading here about is overturning Roe. That's significant, because it moves things back to the States, but it won't entirely eliminate abortion. However, Joe, I think it's too simplistic to say that evangelicalism = overturning Roe.

Also, many evangelicals and politicans say the oppose abortion personally but don't want to mandate it by law. When push comes to shove, will Miers join that camp? I don't know, but I'd be much more sure of it if we had a clear record of her jurisprudence that demonstrates why she would overturn it as a matter of law. We've said that we want judges to follow the Constitution and not be activists who make new law. Well then, why don't we maintain our consistency when it comes to Roe? Why don't we insist on judges with a clear judical philosophy that enables them to overturn Roe as a matter of law? This will increase respect for the law, rather than turning the courts into a political tug-of-war.

Besides, there are many other important issues to Christians, including Kelo, establishment cases, religious freedom laws, etc. Where do we have a record that will indicate what jurisprudence Ms. Miers will follow in determining these other critical issues?

The only real argument favoring Ms. Miers that I've heard is to "trust" the President. But the Bible repeatedly warns us not to put our trust in God, not in "princes".

Let's appoint people whose jurisprudence can form a basis for turning this country around for the next forty years, not just one case.

56

The only real argument favoring Ms. Miers that I've heard is to "trust" the President.

Harriet Miers should be an Associate Justice because she will do a great job.

You won't have to "trust" President Bush, because you will be able to see for yourself how good she is once she gets confirmed and starts hearing cases.

How do I know this? I have a relative who is a corporate lawyer and I know what it takes to be an effective litigator and counsel. Ms. Miers is a very smart and tough cookie, and an extraordinarily hard-working person. Anyone who casually dismisses her is going to be proven wrong in short order.

57

states may restrict access to abortion in the third trimester as long as they provide exceptions for rape, incest and the health of the mother (that's from memory, in case I've missed something).

From memory as well, subsequent cases have defined "health of the mother" so broadly as to make even minor restrictions (such as your hypothetical mistress) virtually impossible to get through the courts. I don't think even restrictions on "partial birth" abortion (which to my understanding is never considered medically necessary, which makes sense because you must deliver the baby more than 3/4 of the way to do the procedure) have been able to pass legal muster.

58

"I would have re-nominated Bork, and if they re-Borked, Bork, a legal genius, then come back with a Miers, to show them what they are missed."

I wish Bush had done so. Bork is old now, and his nomination would provide some hope of a vacancy during a democratic administration. Miers and Roberts, unfortunately, are young enough to cast a long shadow on the Supreme Court.

59

I don't think there would be broad support for legally classifying a confused 15 year-old as a murderer for having an abortion, there may be more support for classifying the abortionist as such, but again that can be resolved through the legislative process, where "we the people" have more influence.

My impression was that you would think the person who performed the abortion on the 15 yr old would be punished more harshly because she was underage. Why? If you treat it as homicide then what difference does the age of the victim's mother have to do with it? Would I be given a lessor sentence if I go out and shot a baby whose mother just turned 18?

We've said that we want judges to follow the Constitution and not be activists who make new law. Well then, why don't we maintain our consistency when it comes to Roe? Why don't we insist on judges with a clear judical philosophy that enables them to overturn Roe as a matter of law?

On what grounds? That a right to privacy does not exist in the Constitution at all? That's not so easy to contain just to the issue of abortion and if you permit a right to privacy it's not so easy to keep it away from abortion.

How do I know this? I have a relative who is a corporate lawyer and I know what it takes to be an effective litigator and counsel. Ms. Miers is a very smart and tough cookie, and an extraordinarily hard-working person. Anyone who casually dismisses her is going to be proven wrong in short order.

Errr, aren't all the Justices on the SC lawyers? Aren't they all 'very smart and tough cookie(s)'? The SC is supposed to be the best of the best, not one of the pack. Maybe she will make a good justice but that doesn't change the fact that this decision appears to have been made for pure cronyist reasons.

From memory as well, subsequent cases have defined "health of the mother" so broadly as to make even minor restrictions (such as your hypothetical mistress) virtually impossible to get through the courts.

I've heard this said often but rarely substantiated. Can you show me a case where a court ruled that someone like Larry's hypothetical mistress could get her late term abortion on 'health' grounds?

60

I'm listening to Focus on the Family and Dobson is talking about Miers. He's talked with people in her church, some of whom have known her for over twenty years. They all testified that she was a solid, fundamentalist Christian. On another radio show today, a woman from Mier's church called in and said the same thing. That's good enough for me.

And I don't believe it's cronyism. Bush appointed somebody that he knew would be solidly conservative. Why go with an unknown like Souter when you have what you need right under your nose? And besides, there's nothing the Democrats can find to protest about her. Just watching them try to find something on her will provide me with amusement for the next few weeks.

61

In other words she goes to your Church so she should be on the Supreme Court. If that's not cronyism then what is?

62

And besides, there's nothing the Democrats can find to protest about her.

But if she was 'solidly conservative' whatever that means aside from 'goes to my Church and is active in the bake sales there' then they could protest that.

63

My impression was that you would think the person who performed the abortion on the 15 yr old would be punished more harshly because she was underage. Why? If you treat it as homicide then what difference does the age of the victim's mother have to do with it? Would I be given a lessor sentence if I go out and shot a baby whose mother just turned 18?

I am not talking about my personal preference here, but about what I think would actually happen. In truth, I would probably be in favor of a harsher punishment for the abortion provider. I know this is not totally consistent, but what you gonna do?

I've heard this said often but rarely substantiated. Can you show me a case where a court ruled that someone like Larry's hypothetical mistress could get her late term abortion on 'health' grounds?

Maybe some lawyer could answer this. What, if anything have I said in any of my posts that would make you think I have the patience to pour through a bunch of law books to find case evidence. (mccoy)Damn it Boonton, I'm an engineer, not a lawyer.(/mccoy)

64

Goggins

"Ms. Miers is a very smart and tough cookie, and an extraordinarily hard-working person."

Really smart workaholic corporate lawyers are not hard to find.

What makes Miers stand out is that she is one of those corporate lawyers who adores George Bush and happens to be an evangelical Christian as well.

The fundamental (heh) question is: is it necessary for an evangelical Christian to believe that terminating the growth of a human embryo should be illegal?

And if so, why?

That is the question I'd ask Miers if I was a Senator.

65

ucfengr

From memory as well, subsequent cases have defined "health of the mother" so broadly as to make even minor restrictions (such as your hypothetical mistress) virtually impossible to get through the courts.

You're not remembering correctly.

I'm talking third trimester and I'm talking about a law that recites the language in Casey where the Supremes HELD that states could restrict abortions in the third trimester provided there were exceptions for rape, incest and the health of the mother.

Are you telling me that NO STATE has enacted such laws?

So if my mistress wants a third trimester abortion in Alabama so we can try for a boy instead of a girl -- no problem under existing State law?

I think you should get your facts straight, ucfengr. Otherwise, I might begin to suspect you are just ranting without knowing what you are talking about.

66

ucfengr

I know this is not totally consistent, but what you gonna do?

You'll never be an first-class evangelical Christian with that attitude.

67

I believe I have a pretty good analysis that leads to a strong conclusion that Miers is not pro-life in the judicial sense (just as Rice is a pro-choice evangelical, Laura, Barbara Bush, and others).

Your comments are extremely welcome.

68

We have a smoking gun.

Quotes of Laura Bush reveal that the President is pro-Roe. The Gonzales fiasco and quotes prove it.

Miers is almost definitely pro-Roe and now Dobson is backing off of his guarantees on Roe.

69

"Can you show me a case where a court ruled that someone like Larry's hypothetical mistress could get her late term abortion on 'health' grounds?"

The burden of proof is on you to show one case
since Roe where Any late term abortion has been refused for any reason. It doesn't happen, which is why all this mindless babble about the "healthy of the mother" is just that, mindless babble.