Tag: Roe

Thursday, 6/30/22

Shamelessly ad hominem

Dave Portnoy can’t even deal right now. Shortly after the Dobbs news broke, the “barstool conservative” celebrity took to Twitter with an “Emergency Press Conference.” “I feel like I have to speak on this issue,” Portnoy announced. There followed 2.5 minutes of semi-coherent ranting, where he proposes that we are “literally going backwards in time,” that “maybe not everything is to a T in the Constitution,” considering it was written by “people who own slaves,” and that he’s pretty sure “95 percent of people in the country think like me — they’re socially liberal and financially conservative.”

…

Of course, it’s tempting to point out that this is the hot take we would expect from a guy who defended himself against charges of being a repulsive womanizing scumbag by countering that maybe he was, but he didn’t break the law. Portnoy would hardly be the first of his kind to wax vehemently eloquent on the sanctity of women’s reproductive autonomy. But his take also reflects the whole political oeuvre he represents—that areligious potpourri of sexual libertinism, anti-authoritarianism, anti-wokeness, and lots of f-bombs.

Bethel McGrew (emphasis added).

I don’t know much about Portnoy. I first paid attention to the phenomenon of “barstool conservatives” within the last month. But I like, and credit, the observation that keeping women “reproductively autonomous” is damned convenient for guys with Satyriasis.

Newly-salient

It is a crime, to take just one example, to aid and abet the forcible intimidation of government officials, including the vice president and members of Congress.

Andrew C. McCarthy, citing newly-salient Federal Criminal laws after Cassidy Hutchinson’s Tuesday testimony.

McCarthy continues:

In any event, Hutchinson explained that the speech, like all presidential speeches, was carefully vetted by staff. White House counsel Pat Cipollone and his staff pleaded for removal of the exhortations Trump was insistent on including — “fight for me,” “fight for the movement,” and so on. They were too close to the legal line of incitement. It was plainly foreseeable that the mob could take forcible action; if it did, White House lawyers feared that this rhetoric would place Trump squarely in legal jeopardy for whatever mayhem resulted — obstruction of congressional proceedings, intimidation of and assault on federal officials, and so on.

The rhetoric stayed in the speech.

So did Trump’s vow that he would be marching to the Capitol with the mob.

A mea culpa: I just assumed that Trump’s vow that he would be marching to the Capitol with the mob was just another of his (literally) innumerable lies to whip up mobs. But if you’re familiar with Hutchinson’s testimony, you now know that he was prevented from doing so by the Secret Service — and may have tried to wrest the steering wheel away from his Secret Service chauffeur.

On the observation that a lot of Hutchinson’s testimony was hearsay:

Still, a few things are worth bearing in mind. First, this isn’t just any hearsay — like idle chatter a witness might eavesdrop on. We’re talking here about a chain of command, where government officials are expected to report things to their superiors — in this instance, up to the president’s chief-of-staff. More to the point, Hutchinson learned these details just minutes after the encounter in the limo. Ornato came directly to Meadows’s office with Engel. As Engel looked on in apparent affirmation, Ornato relayed what had just happened to Hutchinson. Engel gave no indication that Ornato had gotten any of the details wrong. And if Hutchinson is lying or exaggerating, it’s strange that, under oath, she would voluntarily identify so many witnesses who could contradict her.

… [W]hen we say the committee lacks due-process legitimacy, that means it lacks legitimacy as an ultimate finder of fact. It does not mean that we can blithely dismiss any evidence the committee discloses. It does not mean that, because we’d prefer that the evidence not be true, we can dismiss it out of hand because we don’t like the Democrats or the committee process. These witnesses are testifying under oath. There is significant risk to them if they are found to have committed perjury.

For now, all we can responsibly do is ask ourselves whether the evidence presented under these deficient procedures seems coherent and credible ….

In that last assessment, confirmation bias is inevitable. To me, the evidence is coherent and credible.

Recommended: Damon Linker, After Roe: A Letter to My Teenage Daughter About the Dobbs Decision

Excerpt:

Many rejoiced at [Roe v. Wade], but it also angered lots of people—at first, mainly Catholics, who strongly opposed abortion, but they were soon joined by evangelical Christians and even some secular activists. These critics of Roe made two main arguments: first, that the decision was immoral because it declared that women had a constitutional right to murder their babies; second, that the decision was tyrannical because it negated democratically enacted laws.

Before long, those making these arguments came to be called the “pro-life movement.” For the past forty years, it has fought to influence public opinion and gain support in the legal community. That effort finally achieved its goal last Friday, after 49 years, when a Supreme Court majority took its side, declaring, in part, that enough Americans consider abortion to be murder that it should not be treated as a constitutional right; states should be free to permit or forbid the procedure based on the outcome of democratic debate.

I think Linker’s account is extraordinarily fair.

For whatever reason rooted in my emotional make-up, I have always been more in the “Roe was tyrannical” rather than “Roe was immoral” camp. Perhaps it’s because my pro-life awakening came when I was in Law School, already enrolled in a Constitutional Law class.

I believe I have written here that any state legislation on abortion would have a constitutional legitimacy that Roe and its progeny lacked. At least for now, that’s all I’m going to say about my position on what restrictions my state should enact, confident that it’s not going to declare a 40-week open season on the unborn, or even 20+ weeks. In a few weeks, when our legislature convenes, my attention will presumable sharpen.

If people have always said it, it is probably true; it is the distilled wisdom of the ages. If people have not always said it, but everybody is saying it now, it is probably a lie; it is the concentrated madness of the moment.

Anthony Esolen, Out of the Ashes

You can read most of my more impromptu stuff here (cathartic venting) and here (the only social medium I frequent, because people there are quirky, pleasant and real). Both should work in your RSS aggregator, like Feedly or Reeder, should you want to make a habit of it.

Tuesday, 6/28/22

Still more on Dobbs

As I know the lay of the land uncommonly well, I am trying to say some genuinely useful things, that are not being said very commonly, on the reversal of Roe and Casey. I’m also trying to avoid worsening tensions. I even exited social media for a few days (maybe more than necessary — I’ve been peeking) when a discussion started getting unproductively heated.

Face-saving failure

Confirmation hearing vignettes:

Here’s Justice Gorsuch: “Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court. It has been reaffirmed. . . . So a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”

He added that “If I were to start telling you which are my favorite precedents or which are my least favorite precedents, or if I viewed precedent in that fashion, I would be tipping my hand and suggesting to litigants that I have already made up my mind about their cases.”

And here’s Justice Kavanaugh: “Roe v. Wade is an important precedent of the Supreme Court. It has been reaffirmed many times. It was reaffirmed in Planned Parenthood v. Casey in 1992. . . . So that precedent on precedent is quite important as you think about stare decisis in this context.” He made no specific pledge about either case that we have seen. Justice Amy Coney Barrett expressly rejected the idea that Roe was a super precedent.

Wall Street Journal Editorial Board, which also explains why a nominee cannot pledge to uphold a precedent or to strike it down:

Sens. Susan Collins and Joe Manchin said Friday they feel Justices Brett Kavanaugh and Neil Gorsuch deceived them on the precedent point in testimony and in their private meetings with the Justices. We weren’t in those meetings, but we’d be stunned if either Justice came close to making a pledge about Roe.

The reason is that the first rule of judging is that you can’t pre-judge a case. Judges are limited under Article III of the Constitution to hearing cases and controversies, and that means ruling on facts and law that are specific to those cases.

No judge can know what those facts might be in advance of a case, and judges owe it to the parties to consider those facts impartially. A judge who can’t be impartial, or who has already reached a conclusion or has a bias about a case, is obliged to recuse himself. This is judicial ethics 101.

An authority on this point is no less than the late progressive Justice Ruth Bader Ginsburg, as she explained in 1993. “It would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide,” she said. “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”

Frankly, no nominee should ever pledge their vote on any issue at confirmation hearings. That alone would be a disqualifier. Any Senator worth his or her seat should understand that, and since I respect them as senateworthy, I suggest that both Collins and Manchin do understand it. Their face-saving isn’t convincing.

Now flooding the zone shamelessly

As I scan the New York Times Opinion page since Friday morning, it’s apparent that "flooding the zone with sh*t" is not a MAGAworld exclusive.

Do not trust the Grey Lady for reliable interpretation of Dobbs overruling Roe or for prognostications about what a supposedly agenda-driven court is going to do next. (Exception: Ross Douthat wrote one of the wisest things I’ve read in the aftermath, and they did publish it.)

Is the court going to ban contraception? Ban sodomy? Ban same-sex marriage? Overrule the precedents that dogmatized rights to each into existence?

Just remember: courts decide cases. They don’t go out and make mischief on their own. So how would SCOTUS even get a chance to rescind these other "unenumerated rights"?

Damon Linker (After Roe: The Reversals to Come), who I respect enough to read when it’s obvious we disagree, imputes a nefarious agenda to the court but skips any suggestion of how it would get the opportunity to realize that agenda.

I can think of no obvious way other than some jurisdiction banning contraception, sodomy or same-sex marriage, resulting in a fresh round of litigation.

What do you think of the life expectancy of a legislator, even in Texas, who proposed to outlaw contraception? Outlawing sodomy would be a hard sell in 2021 even in red states. I could imagine a performative bill to define marriage as sexually binary, but have trouble imagining it getting very far.

If it did, the lower Federal courts would almost certainly strike such a law down under Griswold, Lawrence or Obergefell. Then SCOTUS could just decline to grant certiorari.

If it granted "cert," the stare decisis analysis on those precedents would include factoring in some very, very concrete reliance on Obergefell in the SSM context.

I’m no prophet, and I’m not close enough to the political poles to be incapably of suffering rude surprises, but I just don’t see those other precedents falling until there’s I’m long in the grave and there have been some major wake-up calls from realities we’ve had on call-blocking for a while.

Heartening

After weeks of incendiary rhetoric, attacks on crisis pregnancy centers, and a foiled attempt on Justice Brett Kavanaugh’s life, Planned Parenthood and other pro-abortion groups formally disavowed violence in the name of their cause. Those who use “destruction and violence” do not speak for them or the movement, the groups said in a statement.

TMD

On a related note, one of my favorite Substackers, Freddie deBoer, scared me by opening that it’s time for the Left to engage in extralegal resistance. Fortunately, it turned out that he meant things like helping abortion-minded women get to states where abortion is legal, or even to help them find clandestine abortions in their own states.

I don’t even think the former could be criminalized; the latter, perhaps.

Victor Rosenblum

As I was writing yesterday that I wish Nat Henthoff had lived to see Friday’s Dobbs decision, I was wracking my brain for the name of his "country cousin" (also a prolife liberal Jewish Democrat) at Northwestern University Law School. I finally gave up. Of course, it finally came to me this morning. So: I also wish Victor Rosenblum had lived to see this day.

Advice for the despondent

After stylishly signaling his pro-choice virtue, Garrison Keillor shows some sympathy for the 6 justices who are now pariahs, and then turns to some good advice for his own tribe:

Meanwhile, remind yourself that other people have thrived under wretched governors so don’t be discouraged. The Duke of Saxe-Weimar threw Bach in jail for daring to think he had individual rights. Dante was sent into exile and he wrote the Inferno so he could put the politician Argenti into the Fifth Circle of Hell. Dostoevsky joined a liberal study group for which, in 1849, he was thrown into prison and sentenced to death by firing squad, and was third in line to be executed when a pardon arrived. He lit out for Paris, London, Berlin, and figured out how to survive, writing Crime and Punishment in serial installments for magazines, avoiding politics. While cruelty is in power, do what Mozart did. Exercise your gifts. Create beautiful things. Wolfgang stayed clear of emperors and did his work and he lives on today and the emperors are just moldy names on marble slabs covered with pigeon droppings. If you can’t write The Marriage of Figaro, write your own marriage and make it a work of art.

That’s kind of what I’ve been trying to do, in my very limited way, for more than a decade. I like to think of myself as that proverbial butterfly in the Amazon, very subtly changing the weather in Indiana.

Not Dobbs

Still flooding the zone

The Donald reads conservatives out of MAGAworld

Bozos on the bus

What we need as a nation, more than anything else I can think of, is a recommitment to basic competence, and, especially, a refusal to accept ideological justifications for plain old ineptitude. Too often Americans give a free pass to bunglers and bozos who belong to their tribe.

Alan Jacobs, I think we’re all bozos on this bus – Snakes and Ladders

Inauguration Day 2017 in a Nutshell

Speaking of clowns:

When a clown moves into a palace, he doesn’t become a king. The palace becomes a circus.

Turkish Proverb (reportedly)

A little levity

I probably have given too short shrift to the January 6 Committee hearings because … well, I didn’t think anything they said would change my life or my vote. But I sure got a chuckle out of this:

H/T Yassine Meskhout

If people have always said it, it is probably true; it is the distilled wisdom of the ages. If people have not always said it, but everybody is saying it now, it is probably a lie; it is the concentrated madness of the moment.

Anthony Esolen, Out of the Ashes

You can read most of my more impromptu stuff here (cathartic venting) and here (the only social medium I frequent, because people there are quirky, pleasant and real). Both should work in your RSS aggregator, like Feedly or Reeder, should you want to make a habit of it.