‘Twas the Night before Trumpmas...

[K-S-U-Wildcats!]

Oh man I can barely sleep the anticipation is killing me! Who will Trump pick?!

I think it’ll be Kavanaugh or Barrett. Both would be solid originalists/textualists and significant improvements over Kennedy. Kavanaugh strikes me as the slightly less controversial pick - more in the safer mold of Gorsuch, Alito, and Roberts. So I guess he’s the favorite.

But then again, controversy may be exactly what Trump wants. It’s no secret that Trump is an expert at trolling the libs into behaving like complete whackadoos utterly outside the mainstream on issues like immigration (Abolish ICE lol) and judges. Barrett’s background as a devout catholic mother of seven would give the libs an absolute meltdown heading into the midterms. And let’s be honest, the optics of picking a woman blunts the liberal’s “ZOMGthispickisgoingtooverturnROEandwecantkillbabiesanymore!” hysteria.

Which hat will Trump choose?!

[Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!)]

I hope it's the woman.

The sexist bigoted left will attack her with vitriol never before seen.

[Mrs. Gooch]

That lady doesn't even believe in birth control. What makes you think she wouldn't be as bad as the men on Roe v Wade?

[Phil Titola]

I hope it's the woman.

The sexist bigoted left will attack her with vitriol never before seen.

You are an odd fella.

[K-S-U-Wildcats!]

That lady doesn't even believe in birth control. What makes you think she wouldn't be as bad as the men on Roe v Wade?

See? This is what we could be enjoying for the next few months!

Alas, it is being reported that Trump is down to Kavanaugh and Hardiman. Ugh, just two more Gorsuch clones....

[Phil Titola]

That lady doesn't even believe in birth control. What makes you think she wouldn't be as bad as the men on Roe v Wade?

See? This is what we could be enjoying for the next few months!

Alas, it is being reported that Trump is down to Kavanaugh and Hardiman. Ugh, just two more Gorsuch clones....

Smart to focus on this topic vs. the other failures over the last month.

[Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!)]

That lady doesn't even believe in birth control. What makes you think she wouldn't be as bad as the men on Roe v Wade?

See? This is what we could be enjoying for the next few months!

Alas, it is being reported that Trump is down to Kavanaugh and Hardiman. Ugh, just two more Gorsuch clones....

The rage will still be good if it's a white guy, just not as good as if it were a woman.

[Rage Against the McKee]

So how long until Roe v. Wade gets overturned? Some states will be passing laws to test it in January, right?

[Phil Titola]

https://twitter.com/mmurraypolitics/status/1016302050488016896?s=19

[K-S-U-Wildcats!]

It sure must be frustrating for the MSM when one hit piece crowds out another. "Damn, our hyperventilating about overturning Roe is taking all the oxygen away from our hyperventilating about Russia, North Korea, China, David Hogg, and Stormy Daniels!"

[Kat Kid]

It sure must be frustrating for the MSM when one hit piece crowds out another. "Damn, our hyperventilating about overturning Roe is taking all the oxygen away from our hyperventilating about Russia, North Korea, China, David Hogg, and Stormy Daniels!"

still a big Scott Pruitt fan?

[K-S-U-Wildcats!]

It sure must be frustrating for the MSM when one hit piece crowds out another. "Damn, our hyperventilating about overturning Roe is taking all the oxygen away from our hyperventilating about Russia, North Korea, China, David Hogg, $cott Pruitt, and Stormy Daniels!"

still a big Scott Pruitt fan?

Updated.

[K-S-U-Wildcats!]

So how long until Roe v. Wade gets overturned? Some states will be passing laws to test it in January, right?

I kinda suspect we need to get at least one more originalist/textualist on the SC before Roe is in any real danger. Roberts will likely take a more "centrist" role now that Kennedy is gone. All they need to do is convince Roberts that killing babies is actually a tax. "Oh, ok, must be Constitutional then."

Seriously though, it would be nice to just sweep Roe into the incinerator from a standpoint of cleaning up the tortured "penumbra of an emanation" jurisprudence, but the SC typically takes a much more incremental approach. So we're likely stuck with Roe's basic (extra-constitutional and medically suspect) framework for a while.

https://www.washingtonexaminer.com/the-pervading-dishonesty-of-roe-v-wade

Laurence Tribe — Harvard Law School. Lawyer for Al Gore in 2000.

“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

“The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” 87 Harvard Law Review 1, 7 (1973).

Ruth Bader Ginsburg — Associate Justice of the U.S. Supreme Court

“Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

North Carolina Law Review, 1985

Edward Lazarus — Former clerk to Harry Blackmun.

“As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather.”
….

“What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent - at least, it does not if those sources are fairly described and reasonably faithfully followed.”

“The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them,” FindLaw Legal Commentary, Oct. 3, 2002

“[A]s a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible.”

“Liberals, Don’t Make Her an Icon” Washington Post July 10, 2003.

William Saletan — Slate columnist who left the GOP 2004 because it was too pro-life.

“Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference.”

“Unbecoming Justice Blackmun,” Legal Affairs, May/June 2005.

John Hart Ely — Yale Law School, Harvard Law School, Stanford Law School

Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”
….

“What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.… At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.”

“The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale Law Journal, 920, 935-937 (1973).

Benjamin Wittes — Washington Post

Roe “is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply.”

“Letting Go of Roe,” The Atlantic Monthly, Jan/Feb 2005.

Richard Cohen — Washington Post

“[T]he very basis of the Roe v. Wade decision — the one that grounds abortion rights in the Constitution — strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy.”
….

“As a layman, it’s hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is.

“If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe , with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers.
….

Roe “is a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument.”
….

“Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument — but a bit of our soul as well.”

“Support Choice, Not Roe” Washington Post, October 19, 2005.

Alan Dershowitz — Harvard Law School

Roe v. Wade and Bush v. Gore “represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political processes…. Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)…. [C]lear governing constitutional principles … are not present in either case.”

Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford) 2001, p. 194.

Cass Sunstein — University of Chicago and a Democratic adviser on judicial nominations

“In the Court’s first confrontation with the abortion issue, it laid down a set of rules for legislatures to follow. The Court decided too many issues too quickly. The Court should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges.”

“The Supreme Court 1995 Term: FOREWORD: LEAVING THINGS UNDECIDED,” 110 Harvard Law Review 6, 20 (1996).

“What I think is that it just doesn’t have the stable status of Brown or Miranda because it’s been under internal and external assault pretty much from the beginning…. As a constitutional matter, I think Roe was way overreached. I wouldn’t vote to overturn it myself, but that’s because I think it’s good to preserve precedent in general, and the country has sufficiently relied on it that it should not be overruled.”

Quoted in: Brian McGuire, “Roe v. Wade an Issue Ahead of Alito Hearing,” New York Sun November 15, 2005

Jeffrey Rosen — Legal Affairs Editor, The New Republic

“In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.
….

“Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it.”

“Worst Choice” The New Republic February 24, 2003

Michael Kinsley

“Against all odds (and, I’m afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court.
….

“…a freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami.”

“Bad Choice” The New Republic, June 13, 1994.

“Liberal judicial activism peaked with Roe v. Wade, the 1973 abortion decision….

“Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching. I also believe it was a political disaster for liberals. Roe is what first politicized religious conservatives while cutting off a political process that was legalizing abortion state by state anyway.”

“The Right’s Kind of Activism,” Washington Post, November 14, 2004.

Kermit Roosevelt — University of Pennsylvania Law School

“t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result.

“This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional ‘person’ entited to the protection of the 14th Amendment.
….

“By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values.”

“Shaky Basis for a Constitutional ‘Right’,” Washington Post, January 22, 2003.

Archibald Cox — JFK's Solicitor General, Harvard Law School

“The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations…. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution”

The Role of the Supreme Court in American Government, pp. 113-114 (1976)

[Kat Kid]

LOL

[sonofdaxjones]

One thing for sure, we need to find out fast how the nominee will rule on specific cases. 

[Kat Kid]

why does anyone even bother with the pretense that the Supreme Court is anything other than political power being executed?

[Spracne]

Everyone admits that the legal reasoning in Roe is suspect. I'd love to see the court overturn Roe and then turn around and make it clear that the right recognized in Roe is actually grounded in equal protection--exactly where it would be if it were decided today. But in 1974, gender equal protection was in its infancy. The big abortion cases since Roe have developed this line of gender equality already, so even without Roe, we'll still have abortion.

[mocat]

Everyone admits that the legal reasoning in Roe is suspect. I'd love to see the court overturn Roe and then turn around and make it clear that the right recognized in Roe is actually grounded in equal protection--exactly where it would be if it were decided today. But in 1974, gender equal protection was in its infancy. The big abortion cases since Roe have developed this line of gender equality already, so even without Roe, we'll still have abortion.

 

[K-S-U-Wildcats!]

Everyone admits that the legal reasoning in Roe is suspect. I'd love to see the court overturn Roe and then turn around and make it clear that the right recognized in Roe is actually grounded in equal protection--exactly where it would be if it were decided today. But in 1974, gender equal protection was in its infancy. The big abortion cases since Roe have developed this line of gender equality already, so even without Roe, we'll still have abortion.

Roe just emanated from the wrong penumbra! Easy fix!

[catastrophe]

But what if they make abortions illegal for men too?

[Rage Against the McKee]

I can't imagine how betrayed I would feel if I had voted entirely on the issue of abortion for the past few decades only for this new court to uphold Roe v. Wade.

[Spracne]

Everyone admits that the legal reasoning in Roe is suspect. I'd love to see the court overturn Roe and then turn around and make it clear that the right recognized in Roe is actually grounded in equal protection--exactly where it would be if it were decided today. But in 1974, gender equal protection was in its infancy. The big abortion cases since Roe have developed this line of gender equality already, so even without Roe, we'll still have abortion.

Roe just emanated from the wrong penumbra! Easy fix!

I'm not talking about any penumbras (penumbrae?) here. You don't exactly have clean hands, here, since you are guilty of the same sins that you're complaining about: deciding your desired outcome and then reverse-engineering a justification. Point me to legal authority that supports the notion that life begins at conception. There is ample, deeply rooted authority to the contrary.

[Trim]

why does anyone even bother with the pretense that the Supreme Court is anything other than political power being executed?

It feels better and more closely matches the checks and balances stuff that children are taught.

[K-S-U-Wildcats!]

Everyone admits that the legal reasoning in Roe is suspect. I'd love to see the court overturn Roe and then turn around and make it clear that the right recognized in Roe is actually grounded in equal protection--exactly where it would be if it were decided today. But in 1974, gender equal protection was in its infancy. The big abortion cases since Roe have developed this line of gender equality already, so even without Roe, we'll still have abortion.

Roe just emanated from the wrong penumbra! Easy fix!

I'm not talking about any penumbras (penumbrae?) here. You don't exactly have clean hands, here, since you are guilty of the same sins that you're complaining about: deciding your desired outcome and then reverse-engineering a justification. Point me to legal authority that supports the notion that life begins at conception. There is ample, deeply rooted authority to the contrary.

Wait a second... hold up juuuuusssst a second here Are you honestly asserting that I can't criticize a completely made-up right to abortion.... unless I can point to a contrary provision of the Constitution that says life begins at conception? Is that really the point you just made? Didn't you go to law school?

How about this. You might want to sit down for this because I'm about to blow your mind. Maybe, and just hear me out, maybe the Constitution doesn't speak to abortion, or when life begins, period. And that's it. So then elected representatives would be free to pass laws allowing or prohibiting abortion, kinda like they do for almost everything else.

[Spracne]

...unless states pass (enforce, rather) laws that conflict with the supreme law, in which case those laws are void. I suggested above that abortion bans should be properly viewed as violative of the Fourteenth Amendment--not under some murky fundamental rights substantive due process thingy, but rather as denying women the equal protection of the laws. <--The equal protection clause is an actual part of the Constitution, not a penumbra. But as a professed Originalist, I'm sure you believe that we are free to discriminate against women because the purpose of the 14th Amendment was to protect newly freed slaves.