Friday, September 05, 2008

Non-issue issues #3 Abortion

There are a lot of single issue voters both pro and con Roe V. Wade, but as a practical matter, this is a non-issue. Roe V. Wade isn't going anywhere.
How can I say that? Obviously, if a Democrat is elected, Roe V. Wade is the litmus test for the selection of a Supreme Court justice. But how about if a Republican is elected? Won't a Republican President choose a conservative judge?

Certainly, but "conservative" means something a bit different in describing a judge- the opposite of "conservative" in this sense would be activist, not liberal. Both types of judges may be conservative or liberal in the political sense. I'm sure CC could do a better job of describing judges, but here is a simple explanation. An activist judge does what he thinks is right, and then tries to find a legal justification for it. In a real life example, a Justice said that the death penalty was unconstitutional because the emerging public sensibilities of the public have deemed it to be cruel and unusual punishment. A conservative judge would say that's crazy; the death penalty is in the Constitution, right there, in black and white- to say anything else is tantamount to amending the Constitution without due process. Republicans like that "original intent" kind of judge.

But what if the issue being discussed isn't in the Constitution? Like Roe V. Wade, for instance? A conservative judge tends to say things like "stare decisis", which means "We've already ruled on that once, and I don't see anything new here that wasn't argued before", and "jurisprudence constante", which means "don't rule on a whim". ( no lawyer can understand a concept until it's been translated into Latin) Don't upset the applecart is the conservative frame of mind. That is why despite most of the Supreme Court having been appointed by Republicans, they've never re-heard Roe V. Wade.

Of course, a Republican President could appoint a right wing activist judge... get him past the Bar rating committee, get them through committee hearings in the Senate, then get him confirmed. Riiiight. Bush couldn't even get mild-mannered Harriet Myers past step 1. And given the court make up, he'd have to do that at least three times, probably four, and possibly five times to overturn Roe V. Wade. I guess it could happen. Bob Barr could pull an upset and become the first Libertarian President. As Henry II said in The Lion In Winter, "In a world where carpenters are resurrected, anything is possible."

Folks, Roe V. Wade isn't going anywhere. Both parties know it. The only reason they even bring it up is because it keeps the contributions pouring in from the activists on both sides. Presidential candidates sigh in relief whenever the question is brought up in a debate, because they know they can waste five minutes without answering a real question and fire up the base at the same time- a real twofer. Don't feed this troll.

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