The twin obsessions in Washington right now about Iraq and the continuing pandemic of GOP scandals have obscured the once and future obsession of George W. Bush’s efforts to reshape the Supreme Court. To be sure, Samuel Alito’s nomination has yet to undergo Senate Judiciary Committee hearings, which is why few senators from either party have taken definitive positions. But as Ryan Lizza points out on The New Republic‘s site today, the gradual build-up of evidence about Alito’s strong antagonism to Roe v. Wade is taxing the abilities of administration spinmeisters who want to keep this nomination in The Roberts Zone.Like a lot of observers, I’ve long felt Alito’s prospects for a relatively easy confirmation depended on whether he is perceived as another Scalia (scary conservative judicial activist) or as another Roberts (reassuring conservative judicial incrementalist). His handlers have done a pretty good job of keeping the dial turned towards the Roberts model, mainly by stressing his calm temperament and geniality; I guess the planted axiom is that Nice Guys Don’t Overturn Abortion Rights.But as Lizza notes, Alito’s growing paper trail of outspoken hostility to Roe, and especially the internal memo he wrote his colleagues at the Justice Department laying out a stealth strategy for ridding the Constitution of abortion rights, are stepping on his current message. And the rejoinder that Alito’s appeals court decisions upholding Roe as precedent show his deep respect for stare decisis is, as Lizza also notes, a crock: lower courts do not have the option of overturning Supreme Court decisions, but Supreme Courts most definitely do.Thus, even as Washington and the whole political world look elsewhere, the probability that the Alito nomination will hang fire is slowly growing. And after the Miers fiasco, accompanied by a growing sense among conservatives that time’s beginning to run out on their tainted ascendancy, Alito’s handlers may not have the wiggle room to make too many dubious assurances that the putative justice might well turn out to be a vote to sustain Roe. Another nice feature of Lizza’s analysis is that he shares my redundantly expressed view that any judicial, much less cultural, conservative reflexively thinks of Roe as the mother of all abominations. There’s absolutely no reason to think Samuel Alito thinks otherwise, and a lot of evidence to suggest his views on Roe are exactly what you’d expect.Now, there are two arguments you often hear in Democratic circles on this subject that sound initially plausible but which, in my opinion, are dangerously off-course. The first is that Republicans actually don’t want to overturn Roe because it would produce a political backlash once state legislatures and governors had to actually decide whether to support or repeal basic abortion rights. The second is that Democrats should smile upon a reversal of Roe, for the same reasons.The first argument, even if you buy it, suggests that Republican politicians can perpetually keep cultural conservatives running around the political track like greyhounds chasing a rabbit that can never be caught. Sure, some GOP pols may hope that’s true, but now, at the moment the Right has prayed and dreamed about for a generation, I just don’t think Republican cynicism on abortion will be allowed to prevailAnd the second argument, while defensible in theory, just doesn’t make any sense in the real world. Whatever you think of the constitutional provenance of Roe, the idea that a post-Roe world would somehow entail a sort of national referendum on basic abortion rights, with a dignified debate and simple up-or-down votes in every state, defies everything we know about the politics of abortion and the nature of state legislatures. The reality is that the reversal of Roe would turn state politics across the country into an endless, 24/7 battleground over a vast array of abortion legislation, perhaps indefinitely. At worst, it could produce the kind of reasoned debate associated with the Schiavo case, every single day, across the country. At best, abortion policy would overshadow many compelling issues most of the time, and some compelling issues all of the time.So you don’t have to be an abortion rights ultra to shudder at the prospect of Roe‘s reversal. Yet Alito’s confirmation will likely bring us face-to-face with that contingency.If the genial Jersey judge conducts a pitch-perfect balancing act in the Judiciary hearings, maybe none of this will matter. And even if he doesn’t, Senate Democrats obviously don’t have the votes to block him, and face an agonizing decision about using a filibuster weapon thatwill likely be snatched away from them immediately–and permanently–through the invocation of the Nuclear Option.But no matter what happens next, Alito is probably not going to be confirmed without serious controversy, and is probably going to face a fight. And the fight will likely, and naturally, wind up revolving around the constitutional status of abortion, which much as we might wish otherwise, is truly hanging in the balance, if not right now, then in a future so near that we should all soberly consider its baleful nature–terrible for women, and bad for democracy.
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By Ed Kilgore
The backlash to the Supreme Court’s abolition of federal constitutional abortion rights is having some interesting new consequences, as I explained this week at New York:
For decades, the Republican National Committee has staked out a hard-core anti-abortion position. So now that a Republican-controlled Supreme Court has abolished the federal constitutional right to an abortion, you’d figure the RNC would take a moment to relish its victory. But you’d be wrong.
Instead, the RNC is lashing out at apostates. In response to 2022 Republican candidates avoiding the topic of abortion and to signs of strife in the party’s alliance with the anti-abortion movement, the RNC has passed a resolution scolding its members and urging them to keep the faith. It concludes with marching orders:
“WHEREAS, The Democratic Party and its allies spent hundreds of millions of dollars on the issue of abortion during the 2022 midterms, concealing their extremism while mischaracterizing and vilifying pro-life Republican candidates; and
“WHEREAS, Instead of fighting back and exposing Democratic extremism on abortion, many Republican candidates failed to remind Americans of our proud heritage of challenging slavery, segregation, and the forces eroding the family and the sanctity of human life, thereby allowing Democrats to define our longtime position; therefore, be it
“RESOLVED, The Republican National Committee urges all Republican pro-life candidates, consultants, and other national Republican Political Action Committees to remember this proud heritage, go on offense in the 2024 election cycle, and expose the Democrats’ extreme position of supporting abortion on-demand up until the moment of birth, paid for by the taxpayers, even supporting discriminatory abortions such as gender selection or when the child has been diagnosed with Down syndrome.”
In states where Republicans have the power to set abortion policy, the RNC doesn’t want any namby-pamby compromises allowing the majority of abortions to proceed (despite its characterization of Democrats as the real “extremists”):
“RESOLVED, The Republican National Committee urges Republican lawmakers in state legislatures and in Congress to pass the strongest pro-life legislation possible — such as laws that acknowledge the beating hearts and experiences of pain in the unborn — underscoring the new relics of barbarism the Democratic Party represents as we approach the 2024 cycle.”
If you aren’t familiar with the rhetorical stylings of the anti-abortion movement, the “relics of barbarism” business is an effort to tie legalized abortion to the slavery and polygamy condemned by the original Republicans of the 19th century (who would probably view today’s race-baiting GOP with a jaundiced eye). The “beating heart” reference is an endorsement of “heartbeat” bills banning abortion once fetal cardiac activity is detectable, roughly at six weeks of pregnancy or before many women even know they’re pregnant.
The resolution is really the announcement of a new hunt for RINOs on the topic of abortion. Some in the RNC worry that their politicians will become squishy on reproductive rights because their constituents (and many swing voters) don’t favor abortion bans and regret the Supreme Court’s reversal of Roe v. Wade, as shown by 2022’s pro-choice winning streak on ballot measures and general Republican underperformance. This pushback by the RNC parallels the anti-abortion movement’s efforts to make extreme abortion positions (such as a national abortion ban) a litmus test in the 2024 Republican primaries, especially at the presidential level.
Will this counterattack stem the panicky retreat of Republican politicians who care more about winning elections and cutting taxes than “saving the babies,” as the anti-abortion activists would put it? I don’t know. But at this point, it’s another sign that the Dobbs decision wasn’t quite the clear-cut victory for the forced-birth lobby that it initially appeared to be.