DISTINGUISHING

I have to believe Frank Rich knows better than this:

Even leaving aside the Giuliani record in New York (where his judicial appointees were mostly Democrats), the more Democratic Senate likely to emerge after 2008 is a poor bet to confirm a Scalia or Alito even should a Republican president nominate one. No matter how you slice it, the Giuliani positions on abortion, gay rights and gun control remain indistinguishable from Hillary Clinton’s.

Look, I like to gloat as much as the next guy, but let’s not do it at the expense of reality. And Rudy Giuliani has indeed gotten more traction than many (myself included) thought he ever could, despite James Dobson et al’s significant discomfort with him. But he’s not a pro-choice candidate (he’s not a pro-gay rights or pro-gun control candidate either). He believes abortion is immoral, and he’s made it clear to anyone who’s paying attention that he’ll appoint judges who will make abortion illegal. The intermediate question of whether he has nice things to say about laws banning abortion is a detail (he’s also reversing himself on laws that make it more difficult for women to access the right to choose). While the Senate on a good day can hold back particularly crazy nominees, the only people who come their way for confirmation are the ones the president sends over. And in case you haven’t noticed, drafting strategies on how to overturn Roe isn’t enough to deny you confirmation votes from Democrats.

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NOT A GOOD WEEK FOR JUSTICE

Robert Bork’s failed domination set a crucial precedent that a nominee whose jurisprudence endangers fundamental freedoms can and should be rejected by the Senate regardless of his personal competence. Unfortunately, Senate Democrats set a new one on Monday by stopping short of a filibuster on Sam Alito, a man who literally wrote the brief on how to kill Roe v. Wade, who has shown unwavering support for the power of the federal government to have its way with marginalized individuals, and who rejects that government’s responsibility and power to act in the service of the disenfranchised. Monday set a dangerous new precedent that when push comes to shove, the Senate will advise and consent only on whether the nominee is a sex offender or an incompetent. It’s a precedent Republicans can be depended on to take advantage of, to the real detriment of everyone who looks to an independent judiciary to safeguard their rights.

The Democrats’ ostensibly rebellious clapping after Bush said that Congress hadn’t enacted his plan to erode Social Security only emphasized the dark irony of the day: politicians who express their opposition through unauthorized clapping but not through the parliamentary avenues available to stop the confirmation of men who will leave us less free.

Want to put some real progressives into Congress? Here’s a good place to start.

THE OTHER SIDE OF ROE

One of the more interesting points William Saletan makes in Bearing Right is that as long as a sizeable number of Americans believes neither that a woman has a right to choose nor that a fetus has a right to life, we’ll continue to see employers, judges, parole officers, and others pushing policies which should trouble those who believe in either – policies which deny pregnant women who want to carry a fetus to term, or women who want to retain the ability to get pregnant in the future, the chance to do so. The case studies Saletan explores show that when the issue is mandatory abortion, pro-choicers and “pro-life” activists have generally been united in defending a woman’s right to choose birth, though in cases where the issue is mandatory sterilization, “pro-life” organizations have too often stood with those who would take away a woman’s or man’s reproductive autonomy, whether permanently or for the duration of coercively-implemented injections.

The ultimate line of legal defense for women told that sacrificing the chance to have a child is the cost of a job or a parole is that much-maligned but nationally popular decision, Roe v. Wade. One of these women is April Thompson, who is suing Piedmont Management Associates for firing her over her decision to remain pregnant:

According to the lawsuit, when Ebert found out Thompson was seeing a fertility doctor, she told her she was “worried that she was trying to get pregnant.” “If you get pregnant, you will have to move because I am not putting up with any babies around here and you also won’t have a job,” the lawsuit says Ebert told Thompson. “The guys and I do not even hire single mothers because of the problems. I know you have some great delusion that you will be a great mother, but you won’t — you can’t even take care of your dog.”…According to the lawsuit, when Ebert found out, she demanded that Thompson get an abortion.

April Thompson is a poster child for the centrality of privacy and workers’ rights to the pursuit of happiness this country promises. And her case represents the danger of a jurisprudence which would elevate an ostensible “free contract” right to sign away your personal freedom over individual rights, and the judgment of the state over the bodily integriy and autonomy of the individual. It reminds us why, if John Roberts still sees Roe as “unprincipled jurisprudence” and scoffs at a “so-called right to privacy,” and plans to remain the “go-to lawyer for the business community, then America deserves better than John Roberts on the Supreme Court.

ROBERTS’ RULES

Good news: Edith Brown Clement is not, for the moment, a nominee for the Supreme Court.

Bad news: I’m starting to miss her already.

John G. Roberts’ America is not one which does the best traditions of this country proud.

People for the American Way has compiled some of the reasons why. Among the more troubling of his arguments:

School-sponsored prayer at public school graduations poses no church-state problems because students swho don’t like it can just stay home from their graduations.

Congress can ban flag-burning without a free expression problem because bans don’t prohibit the “expressive conduct” of burning the flag – they just remove the flag as a prop with which to do it.

Arresting minors for crimes for which adults are given citations poses no equal protection challenge because minors are more likely to lie.

On choice, Roberts authored a government brief in Rust v. Sullivan that Roe “was wrongly decided and should be overturned.” As for the Lochner litmus test, he dissented from a D.C. Circuit Court case upholding the constitutionality of the Endangered Species Act. And at least in Law School, he apparently took a very broad view of the “takings” clause, opening the door to dangerous judicious activism targeting popular economic regulations which protect the economic security of the American people.

START YOUR ENGINES

News is that the Supreme Court nominee will be announced tonight at 9 PM, and the buzz is that it’s Edith Brown Clement. She seems like a likely choice: she’s a woman, has avoided drawing as much controversy to herself as a Janice Rogers Brown, and has a far right-wing vision for the court and this country (it always seemed to me that the Gonzales trial balloon was just about getting credit from Latinos for considering him and getting credit from evangelicals for not nominating him).

Brown Clement’s opaque views on abortion will likely continue to dominate news coverage; apparently she refers to Roe as “settled” but not made particularly clear whether she would be interested in unsettling it. The bad news there is, anti-choice leader Hadley Arkes is optimistic:

Just whether or when Roe v. Wade is actually, explicitly overturned may cease to matter quite as much. For in the meantime, the public would have the chance to get used to a continuing train of laws restricting and regulating abortion.

As for the Lochner litmus test, however Brown Clement feels about judicial activism to protect privacy, she seems all-too comfortable with judicial activism to strike down progressive regulations. As Nathan observes, she supported a challenge to the constitutionality of the Endangered Species Act, denied ADA protection to employees discriminated against for having HIV, and argued for making it harder for the poor to get legal representation by cutting legal fees when clients win small awards. As Jeffrey Rosen wrote last year:

How would a stealth candidate like Clement perform on the Supreme Court? Everything about her record suggests she would enthusiastically support the federalism revolution…Taken to its logical limits, the Constitution in Exile would call into question not only environmental protections but workplace regulations like the Occupational Safety and Health Act.

FLIP-FLOP IN A PHRASE

Appearing on Hardball, What’s the Matter With Kansas star Sam Bronwback (R-Kansas) just told us that Americans are angry at the courts because they keep “inserting themselves” in issues where we don’t believe they belong, like Roe, and “changing our understanding” of issues like property in cases like Kelo. What he avoided saying, lest he stray off the message discipline reservation, is that the decision in Kelo he decries as a change was a decision not to overturn the law. Senator Brownback’s problem with the court’s economic jurisprudence, in other words, is that it’s not activist enough.

The conservative establishment vision for the court is not that it leave controversial decisions to be settled directly by the people, but rather that it step back when majorities choose to legislate against civil liberties (especially those of others) , and then aggressively intercede to overturn even those economic regulations which are overwhelmingly popular. Conservatives like Sam Brownback are outraged when the court stops a heterosexual majority from writing homosexuals out of the city’s non-discrimination laws in Romer, but elated when it turns back Congress’ attempt to keep firearms out of our schools. Whereas my reactions, unsurprisingly, are the opposite. A couple days ago I set forth a couple of the reasons I think the Court is justified in blocking the imposition of majoritarian sexual morality in Griswold and unjustified in blocking the majority’s attempt to set common labor standards in Lochner (if you want to have sex without condoms and make at least $5 an hour at work – not at the same time that is – my using condoms doesn’t make a difference to you but my working for $1 does). And Brownback has his reasons for his position as well. But unlike, say, Nathan Newman, he can’t hope to credibly claim that he’s an opponent of “judicial activism” across the board (and unlike – maybe – Finnegan, he can’t claim to be a consistent fan of judicial intervention to limit government either).

As a couple Yalies just showed in a Times piece identifying Clarence Thomas to be the Court’s Activist-in-Chief, the question for most of us is when and to what extent such activism is just and appropriate, and the country would would be better served by a national debate on that question (personally, if the question were all the activism or none of it – which I’m glad it isn’t – I’d go with none so that the left would at least have recourse to the legislature, and a spur to organize).

THE LOCHNER LITMUS TEST

Finally made it into the Philadelphia Airport late last night, after several hours delayed in George Herbert Walker Bush Airport in Texas, a real monument to small government if ever there was one. It was long enough to read a good chunk of Ed Klein’s anti-Clinton screed, and yes, it’s as bad as they say, and certainly libelous – though I’m not convinced that should be illegal. And it was a chance to watch the same couple minute CNN piece on O’Connor’s resignation several times.

Not being a Democratic Senator, I have the freedom to go off message and say that O’Connor’s resignation is unfortunate not because she was the linchpin in some sort of divine cosmic balance on the court that’s best for the country, but simply because her replacement will almost certainly be even more conservative than her, and conservative jurisprudence is bad for our country. Of course, if she herself didn’t want that to happen, she shouldn’t have presided over the theft of the 2000 election.

As for who comes next, my sense is that the Alberto Gonzales trial balloon is a red herring. It wins Bush credit from some moderates and Latinos for having an ostensibly moderate Latino on the “short list,” and when he goes with a Janice Rogers Brown instead, he’ll win that much more credit from right-wing extremists for having “listened” to their concerns about Gonzales.

The good news is that there are still five votes on the Court for upholding Roe (Casey was 5-4, but since then Justice Ginsberg replaced Justice White, who was one of the four), though not Steinberg v. Carnhart, which the federal late-term abortion ban seems to have navigated around anyway. That said, support for the right to autonomy in intimate spaces and decisions long recognized by the court is absolutely a standard for just jurisprudence.

At least as important as support for Roe in the coming controversy, though, should be opposition to Lochner, the court’s atrocious 1905 decision overturning New York’s minimum wage statute on the grounds that the absolute right of contract including a “right to work” for poverty wages. Lochner was overturned in West Coast Hotel, which rightly upheld the power of the people, through the legislature, to foster justice in the face of collective action problems and asymetrical bargaining relationships by enforcing universal labor standards.

Since Justice Black’s dissent in Griswold, opponents of privacy rights have made the perversely labelled the cases protecting them as “Lochner”-like, ignoring the differences between legislation regulating the relationship between employers, employees, and consumers, one which is by definition public, and legislation which regulates the private choices of individuals. Much as Footnote IV in Carolene Products suggests that judicial review is more justified when exercised to protect the rights of “discrete and insular minorities” who face more obstacles in protecting themselves in the legislative process, legislation itself is that much more justified when it achieves collective ends a majority of individuals might prefer but be unable to enact individually due to collective action problems. The law wrongfully overturned in Lochner achieved majority support despite employer opposition because most workers preferred to work less than 60 hours a week but could not unilaterally refuse to work more without threatening their livelihood. It is far less credible to argue that the legislation barring contraceptive use rightfully overturned in Griswold solved a collective action problem shared by a majority of couples who did not want to use contraception themselves but were somehow unable to decide for themselves not to use them. This illustrates the distinction between private and public interaction, and why privacy rights, which protect the former from the kind of regulation appropriate for the latter, preserve personal freedom, while the absolute “right to work” suggested in Lochner diminishes it.

While Justice Black makes equivalence between Lochner’s invocation of substantive due process and that in Justice White’s concurrence, the relationship between the fourteenth amendment and absolute laissez-faire contract rights is far more tenuous than the relationship between the Bill of Rights and privacy. The laissez-faire hostility to so-called “class legislation” was also explicitly rejected as constitutional law by the people through the sixteenth amendment, which in imposing an income tax recognizes the right and responsibility of government to pursue economic justice and equal opportunity through law. The American people, whose prosperity has been fostered and protected by many of those laws, deserve a new Supreme Court Justice who recognizes that right and that responsibility as well.