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July 20, 2005

The Beatings Will Continue Until Morale Improves

I greatly feared this yesterday whilst reading up on Judge Roberts. I had an uneasy feeling he would be the nominee, if only to ensure abortion activists would go high and to the right (for no reason, not that they ever need one). And that seems to be the case today. Adam at Southern Appeal comments:

Drudge is running a huge headline across the page, in red, quoting Roberts as saying "We continue to believe that Roe v. Wade was wrongly decided and should be overruled."

That is quoted from a brief to which his name was attached while he served in the Bush Administration. The brief was written on behalf of the administration, not on his own behalf. That brief was filed in Rust v. Sullivan, 500 U.S. 173 (1991). This was hardly a statement of Judge Roberts's personal position. Judge Roberts was not even the top name on the brief..

Now unless Judge Roberts has recently been annointed by the Finger of the Almighty and adopted the use of the Royal "we", one could perhaps be charitable and assume he was, as has been the custom with paid advocates for Lo! these many years, vigorously arguing the government's position? Juan non-Volokh was inclined to see it this way as well:

Attorneys have an ethical obligation to zealously advocate the position of their clients. An attorney in Roberts position had an express duty to advance his client’s – the federal government's – policy position as effectively as possible. If this meant attacking Roe head on (after all, Roberts did win the case, even if Roe was not overturned), Roberts would have been derelict in his duty had he softened the claim.

The WaPo Sunday attributed the statement to Roberts - this alone made my black Celtic heart certain he would be the nominee. I looked it up and noted, as Adam did the almost-unbearable tendency to link it to Roberts:

In the original version of this post, I suggested that "he wrote" the brief. Of course, that was itself a misstatement; I have no clue which person or persons wrote that brief; all I know is that his name was attached. (Look at me -- now even I'm tying him too tightly to that brief.)

The WaPo Sunday was dismissive, also attributing the quote exclusively to Roberts. The NY Times was more fair, actually managing to capture the distinction between one's personal views and the requirement to do one's job. Full marks:

Abortion rights groups fault him for arguing, as deputy solicitor general for the first Bush administration in 1990, in favor of a government regulation banning abortion-related counseling in federally financed family planning programs.

He also helped write a brief then that restated the administration's opposition to Roe v. Wade, the 1973 Supreme Court decision that established the constitutional right to abortion, contending, "We continue to believe that Roe was wrongly decided and should be overruled."

But when pressed in his 2003 confirmation hearings for his own views, he said: "Roe v. Wade is the settled law of the land," and added, "There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

Such comments have made Judge Roberts somewhat suspect in the eyes of some social conservatives. But he arouses nothing like the opposition that conservatives leveled at another potential nominee, Attorney General Alberto R. Gonzales, whose views on abortion are more uncertain.

If only that sort of nuanced view were to take hold in Congress.

We can only hope. Meanwhile, for those who want the inside scoop on Judge Roberts, KJ has what I consider to be the definitive legal analysis of his conservative credentials. Most impressive.

Posted by Cassandra at July 20, 2005 08:17 AM

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"We continue to believe that Roe v. Wade was wrongly decided and should be overruled."

Would it be so terrible if that was his personal view as well?

Posted by: Pile On at July 20, 2005 09:55 AM

Pile, you ignorant slut...

Posted by: Cassandra at July 20, 2005 09:57 AM

That's magnificently ignorant slut.
Silly ignorant slut
Extremely ignorant...
I can go on.


I agree with Mr. Pile. The use of the Royal "We"
infuriates Bush haters who derogatorily refer to him as "King George."

Posted by: Cricet at July 20, 2005 10:49 AM

No, Pile. More importantly, though, is that it wasn't his position. It was his clients. I have taken the exact opposite position on the same issue during my career b/c my clients interest were different. I didn't change my mind about what law should be. I was just doing my job. In one such instance I clearly recall, both times there was no clear "right" answer under the existing precedent. So I won both times, b/c there was no appeal in either case.

Posted by: KJ at July 20, 2005 12:07 PM

I think Roe is bad law, badly decided. Not surprisingly a good many people beieve the same even those who approve of "choice" It's a lousy case, and one whose legal foundation and reasoning is so fragile that a gust of judicial wind would blow it away. That's why aboration advocates completely lose it whenever Roe appears to be challenged: they know its a loser.

Of course, Congress could pass a law permitting abortion and resolve the Roe controversy once and for all. That way we could get back to grilling our prospective judges, politicians, and plumbers on how they feel about the Commerce Clause. Good luck.

(By the way, no way Judge Roberts wrote that brief. Briefs are written by underlings, such as me. The big cheeses just sign their names.)

Posted by: spd_rdr at July 20, 2005 01:37 PM

Most importantly of all (and I take Pile's point and it is a valid one: why can't he have that personal opinion? it should not be an automatic disqualifier) is the quote I bolded above; because it shows his intent to follow the law rather than his personal beliefs.

Speaking of "code words", the Left has been using stare decisis as a code phrase for 'intent never to overrule Roe v. Wade' as though use of stare meant a precedent could never be overruled.

And that is not the case. Given, it is hard to do, but there is, if you'll pardon the pun, ample precedent for overthrowing precedent on the basis that it was wrongly decided.

Posted by: Cassandra at July 20, 2005 01:40 PM

Regarding spd's comment, a question I have just started asking those who freak at the thought of overturning Roe: "what do you think would happen if Roe were overturned tomorrow?".

They don't know. They all think abortion would go away, because this is what the NARAL folks tell them. When I point out (as an increasingly reluctant pro-choicer) that the majority of Americans don't favor a total ban on abortion and the matter would then revert to state legislatures (who will vote as their constituents want them to), they are flabbergasted.

Posted by: Cassandra at July 20, 2005 01:45 PM

Re: your title -- forget that! My morale will continue until the beatings improve. It's inconceivable that Bu-shaitan thinks he can distract us from bleating about all his other crimes just because he nominates the Dread Pirate Roberts to the Supreme Court.

Posted by: Bubblehead at July 20, 2005 02:17 PM

Well, Cassandra, public opinion about abortions has shifted, in conjunction with the newest technologies, which show that women are not now, nor have they ever been, aborting mere, "clumps of cells." My pastor recently gave an absolutely FANTASTIC sermon, on the subject, complete with a guest speaker who is a gynecologist. The truth is, by the time most women are even aware that they are pregnant, the fetus has a beating heart...although very tiny, it is NOT just an undefined, "mass of cells."

The NARAL/Planned Parenthood crowd is becoming increasingly desperate, as fewer Doctors are performing abortions. Indeed, in the recent past, they have put pressure on Doctors, hospitals, and clinics to try and FORCE them to perform abortions. I believe I read, quite awhile ago, that their efforts to force the medical schools to teach the barbaric procedure has failed, but they have not given up that fight. I have never been, "pro-choice," but over the years, seeing the NARAL crowd evolve, into, "abortion at any time for any reason (or no reason at all)," I'm more anti-abortion than I have ever been before. I'm convinced that they have noted this shift in public opinion, and this is why they feel so threatened by the idea of Roe vs. Wade being overturned...they know that many states would probably outlaw abortion.

Posted by: JannyMae at July 20, 2005 02:18 PM

It would no doubt surprise you to know that I think Roe ought to be overturned.

The debate should be a public one, people ought be become more informed, and like you, I believe that were this to happen abortion would become a much rarer occurrence both as a matter of law and of "choice", a word I detest in conjunction with the taking of a human life.

Posted by: Bush Ate My Soul... at July 20, 2005 02:23 PM

As pointed out, as a matter of practicality not much would really change if RvW is overturned.

It's largest effect would probably be to diminish the screaming over the issue as it will now be decided by "the people" thru the legislatures instead of handed down from on high.

A few states might ban it except for life of the mother, but most would not. This makes thoses state's laws almost unenforceable. The vast majority of those seeking abortions possess the means to cross state lines and will have the abortion anyway.

Holy ****, the commerce clause is coming, the commerce clause is coming!

Posted by: Masked Menace© at July 20, 2005 02:46 PM

And still others cling to life:

(AP) - A brain-dead pregnant woman on life support has reached the milestone in her pregnancy where doctors believe the baby could realistically survive outside the womb, giving her family renewed hope about the devastating ordeal.

Posted by: spd_rdr at July 20, 2005 02:49 PM

With my nursing history, I've had first-hand contact with abortion. I've personally taken care of women who have developed severe P.I.D (pelvic inflammatory disease) related to LEGAL abortions. Making abortions legal did not make them, "safe," contrary to what the NARAL crowd wants us all to believe. That's one of the chief problems that I have with these people...that they DO NOT inform women of the REAL risks associated with abortion. Let's face it, for Planned Parenthood, the bottom line is the almighty dollar. Why else would they be fighting against parental notification laws, and other measures which the vast majority of people consider reasonable?

"It would no doubt surprise you to know that I think Roe ought to be overturned."

No, Cassandra, not really. I've been reading your blog for some time, and you are extremely intelligent and you are well aware of the consitutional issue surrounding Roe vs. Wade. You also qualified your comment by stating you are, "reluctantly," pro-choice. I do lots of blogging, anyway (too much?) but especially so, at this time of year, when the angel is out of school, and the temps go above 110 in Arizona. If I had a blog, I would want it to be like yours! A nice mix of humor and serious subjects....

"A few states might ban it except for life of the mother, but most would not. This makes thoses state's laws almost unenforceable. The vast majority of those seeking abortions possess the means to cross state lines and will have the abortion anyway."
I agree, Masked Menace, but reality is not what's important, when you have a group of people like NARAL who are so adamantly opposed to ANY restrictions on, 'choice.' Perception is the key, and I believe they fear that abortions would be banned...all you have to do is read their insane rhetoric about Bush to ascertain that!

Posted by: JannyMae at July 20, 2005 04:16 PM

Whether or not reality or perception is what is important here, Roe was a bad decision and deserves to be put on it's ear for that reason alone. The constitution never specifies when life (and thus rights to be protected by the state) begin. Thus, it is a matter for the legislature to decide at what point they will protect your rights.

If it serves to tick off the people at NARAL, that's just gravy.

Posted by: Masked Menace© at July 20, 2005 04:34 PM

Actually you have no idea how reluctantly, Janny.

I've taken a lot of grief for my stance on this issue. My husband warned me never to open my mouth about it and in many ways I wish I never had. I haven't really begun to discuss what I think about this with anyone here, and I don't think I ever will. It's too hard to explain.

I guess the only thing I can say, paradoxically, is that I'm really not that far apart from you all. Once you've felt a baby move inside you, you can't doubt what a miracle that truly is - it goes beyond what human law was ever meant to parse. And that's the tragedy of this, if you ask me (not that anyone did). I tried to explain that once and I utterly failed.

Posted by: Endangered West End Corked Bat at July 20, 2005 05:29 PM

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