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Annoyance at a dishonest debating tactic... - John [entries|archive|friends|userinfo]
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Annoyance at a dishonest debating tactic... [Nov. 1st, 2005|11:27 am]
John
I am not yet stating that I support or oppose the recent SCOTUS nominee. Nevertheless, there is one dishonest tactic being used that angers me.

The argument goes that Judge Alito should not be judged as anti-abortion because he cited and held to SCOTUS decisions about abortion, so he he clearly accepts Roe vs. Wade.

It sounds like a sound argument... to someone who knows absolutely nothing about the court system.

Appeals courts are *obligated* to follow SCOTUS decisions. An appeals court judge doesn't have the authority to overrule a decision of a higher court. All an appeals court judge could do is argue that the Supreme Court's decision did not apply for some reason, and the Supreme Court does its best to make sure its decisions are clear to avoid that kind of problem.

Yes, he obeyed orders as an appeals court justice... that does not mean he beleives that Roe vs. Wade should be upheld. Will he uphold Roe by the principle of stare decisis? We don't know. We do know we have reason to be suspicious.
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[User Picture]From: droops
2005-11-01 07:46 pm (UTC)
You are absolutely right, and that is very observant. When he's at the top, what would he really do? No one knows for sure because no one knows what the specifics of a case might be. Still, it's hard to figure that this president would appoint someone who isn't against Roe.
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[User Picture]From: nsingman
2005-11-01 08:19 pm (UTC)
Why uphold Roe by stare decisis if Roe was a bad decision (and it was, on constitutional grounds, which are all that matter)? Stare decisis, by the way, is itself a rather shaky principle. Look at Plessy v Ferguson and Brown v Topeka, decisions which reached opposite conclusions using virtually the same constitution. They can't both be right; ergo, the Supreme Court can be wrong. There is no reason for a future Supreme Court to respect a flawed precedent merely because it is a precedent.

Here's why I tend to support Alito, though I'm strongly pro-choice:

"Whether the legislature’s approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether Section 3209 meets constitutional standards."
Samuel Alito, partial dissent, Planned Parenthood v Casey.

Exactly so.
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[User Picture]From: johnpalmer
2005-11-01 08:42 pm (UTC)
I have never understood the notion that Roe was a bad decision. Can you explain it, or point me to an explanation?

I've seen other poeple make that claim, and every time I've seen it, nothing over-rode the fundamental issue that's stuck with me, which is to say, the 9th Amendment. Yes, Roe asserts a right not enumerated in the Constitution. Well, the 9th Amendment explicitly says that, just because no one's thought to say it exists, doesn't mean it doesn't exist. Sooner or later, someone has to rule whether a right exists or not, whether or not the state has an interest in criminalizing an action or not... well, the court made that ruling.

Maybe this is one of those times where I'm so convinced by my own reasoning that I just can't truly grasp the other person's arguments (or maybe it comes from being a philosopher, not a lawyer)... but when I've seen pro-lifers (usually smugly) declare Roe flawed, it all came down to "and how can it be correct when it means the murder of millions of innocent little babies!" I've never seen a strong argument showing a flaw that didn't seem to be based upon some person's eep factor.

Herm. Major digression there... my point was not about whether stare decisis is good or not... my main argument was "stop saying Alito will uphold Roe, just because he followed orders as an appeals court judge!"

That he can follow certain orders as a colonel doesn't mean he'll *give* those same orders as a general.
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[User Picture]From: nsingman
2005-11-02 02:02 am (UTC)
I initially wrote a longer comment, and decided to be more brief. Unfortunately, in deleting that longer comment, I left the digression, and deleted my strong concurrence with your point that accepting a Supreme Court precedent as an appeals court judge in no way indicates whether or not he'd overturn that precedent as a Supreme Court justice. Obviously, I hope he does (and again, I'm pro choice).

You don't need to be a lawyer to understand the fundamental problem with Roe v Wade. You simply need to read the entire Constitution. Roe is a badly flawed decision simply because the federal government has no standing on the issue of abortion. It's a matter for the states. The principle of federalism applies here (see the 9th and 10th Amendments). Does that mean that there should be fifty different sets of laws on abortion? Yes, that's exactly what it means. Will that be inconvenient for some people seeking abortion? Doubtless so. Should the Constitution be bypassed for their sakes? Never. Should it be amended? If that's what enough people and/or states want.
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[User Picture]From: johnpalmer
2005-11-02 03:14 am (UTC)
Nod. And, you see, that's exactly what I don't understand.

The Tenth Amendment says that the rights not given the feds go to the states or the people.

That says that the states don't automatically get the right to regulate something. Some of the rights clearly belong to the people.

Are these people saying that the state can regulate everything? The state could put you in jail if you don't wash your hands after you pee? I feel that the 9th Amendment covers that... the people have rights even if they weren't specifically enumerated.

It's one of those times when I think I have to be completely and obviously wrong for some reason, because it seems clear that, the right to decide if an abortion should be performed under X circumstances either belongs to the people, or to the states... and the SCOTUS delineated when and where the power belonged to the states, and the people... so it seems like a sound decision to me. (Easy to say when I'm on the 'winning' side, but I think it would have taken me aback even when I was solidly pro-life.)

I understand the federalism argument... I just don't see why it so obviously trumps the right of the people. I see Roe as an angry-making decision, but not a poor or weak one.
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[User Picture]From: nsingman
2005-11-02 11:30 am (UTC)
The states don't automatically get the right to regulate something, but they get the default right to regulate almost everything, except where prohibited by the federal constitution and their individual state constitutions. The federal government, on the other hand, may not do anything other than what it's explicitly permitted by the federal constitution.

The right to an abortion is something that state governments and their people must wrangle with on a state by state basis, inconvenient though this may be. And yes, a state could make it illegal to fail to wash your hands after micturition.

The point you're missing, I think, is that the federal constitution is a document that exists primarily to define and limit the scope of federal power, not state or popular prerogatives. State constitutions define and limit the scope of state power, but the states were supposed to have substantial latitude.

I may not like these facts, radical libertarian and laissez faire capitalist that I am, but they satisfy the strict constructionist in me. And I do like the idea of all of us playing by the same clear and explicit rules.
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[User Picture]From: johnpalmer
2005-11-02 11:54 am (UTC)

The point you're missing, I think, is that the federal constitution is a document that exists primarily to define and limit the scope of federal power, not state or popular prerogatives.


You have to understand, using that argument, the Fifth Amendment was only binding upon the Federal Government until the passage of further amendments... and I don't believe that.

But even if it did, I don't think that reasoning could be used after the passage of the 14th Amendment. Once the 14th Amendment came into play, then "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".

Adding in the 9th Amendment (and the seemingly clear implication of the 10th) and the people have rights... rights that can't be abridged.

I know that you're sincere in your arguments here, because, as you note, you'd rather believe that I'm right, that the people have more rights, and the government fewer. And I grant, you might be right... but I think it'd take a legal historian to convince me at this point.

Kind of a "Yes, that's the mistake a huge number of first year law students make, because it's a perfectly rational way to read it. Because of this, this, and this, that interpretation can't hold."



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[User Picture]From: nsingman
2005-11-02 07:05 pm (UTC)
Ah, but the amendments aren't all the same - not even the first 10. The first, for example, explicitly restricts Congress, and thus the states were free to have established churches. The second and the fifth were more universal in their coverage. No state can control gun ownership constitutionally, nor take private property without compensation, etc.

The privileges and immunities clause is one of the justifications for the "incorporation doctrine" of the 14th Amendment, but even overlooking the controversial ratification of that amendment, the most such a doctrine would have you believe is that the bill of rights must apply to the states. And still, federalism is mostly untouched.

No, for better or worse (and I believe it's better, because I like federalism and local control), I firmly believe that I'm correct here.
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[User Picture]From: johnpalmer
2005-11-05 09:56 pm (UTC)
I've been thinking about this, which is always a dangerous thing.

I finally wondered if maybe the reason we would disagree on this is that you see Roe as telling the states what they must do, whereas I see it as saying that the people have a right?

For example, if the SCOTUS says that the state can't criminalize purely written porn, no matter how disturbing, that's asserting a right of the people. It says that the states can't make text-only porn illegal, but it's not exactly putting a demand on the states, either... it's declaring a freedom of the people.

On the other side, if the SCOTUS ruled that the states must allow gay folks to marry (and I don't think this can be justified under the Constitution), that's a clear violation of federalism.

Is our disagreement that you feel Roe is more like the second than the first?

(I'm hoping I guessed right, and that you'd agree with the reasoning of both of these examples. :-) )
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[User Picture]From: nsingman
2005-11-05 10:30 pm (UTC)
You're not too far off, I think. If the Supreme Court (the zenith of the judicial branch of the federal government) attempts to restrict the actions of a state government OR the people, they must have a constitutional justification for doing so. In the case of Roe v Wade, there is nothing in the Constitution giving the federal government authority over abortion (or most criminal law), so any federal decision - pro or con - is a usurpation of either state or popular prerogatives.

In this case, I think you see the state and popular prerogatives coming into conflict, and side with the people. I'd like to do so also (I hate siding with any state over any person!), and many state constitutions would see it that way. The federal constitution, however, gives the feds no grounds for overruling state laws on abortion. It's really that simple.

This is one of those situations where the states are given federal constitutional latitude to restrict rights I'd rather they wouldn't. That's why we fight it out in the statehouses, and that's why I'm pro choice but want Roe overturned.
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[User Picture]From: karenkay
2005-11-01 09:32 pm (UTC)
Did you see what his mom said? "Of course he's against abortion".
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[User Picture]From: kightp
2005-11-01 09:41 pm (UTC)
Listen to moms. Moms know all ...
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[User Picture]From: lblanchard
2005-11-01 10:31 pm (UTC)
So? I'm against abortion. I was very careful to make certain I only got pregnant on purpose and on a visceral level I do not understand women who don't. Don't bother trying to explain it to me, folks. I don't "get" it.

That doesn't mean I would try to outlaw it. But I'm not particularly keen on paying for anyone's abortion, either, although I suppose from a strictly economic standpoint it's probably cheaper than paying for a pregnancy and its aftermath if we're talking public health expenditures.
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[User Picture]From: karenkay
2005-11-01 10:38 pm (UTC)
I'm astonished that you don't realize that pregnancy is not always a choice.

I waffle on the public health expenditure part. Partly because I see a short path from govt paying for abortion to govt demanding mandatory sterilization.
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[User Picture]From: lblanchard
2005-11-02 03:01 am (UTC)
I'm astonished that you don't realize that pregnancy is not always a choice.

You mean, "not a choice" as in rape or incest? I'll agree with you there. Bub "not a choice" as in contraceptive failure? Or "not a choice" as in not taking precautions or being talked into something by some suave trifler? That's another matter -- sympathetic though I may be to these folks' plight, if a woman chooses to be sexually active, she also accepts the risk that she may become pregnant. That's choice in my book.

The point I was trying to make, though, is that being personally against abortion doesn't necessarily mean that someone will rule against it on the bench. I'm personally against abortion and I also think it's preferable that it be legal.
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[User Picture]From: kightp
2005-11-02 03:31 am (UTC)
The point I was trying to make, though, is that being personally against abortion doesn't necessarily mean that someone will rule against it on the bench.

Of course not.

In this particular case, though, the candidate's judicial record suggests that he will.
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[User Picture]From: lblanchard
2005-11-02 11:59 am (UTC)
You mean the Pennsylvania "notify the spouse" thing?

This will take the comments on John's journal a bit afield, so John is welcome to jump in and tell me to go rant on my own LiveJournal. But it seems to me that a society that argues, rightly, that a man has a legal and moral obligation to support his progeny (i.e., child support) also should have the right to know if he's about to lose potential progeny. That, to me, is simple justice.

"What if the child isn't his?" Well, shame on her, then, for compounding a presumably clandestine extramarital affair with poor birth control planning and seeking to hide the consequences. I say this as someone who has a dimmer view of poor birth control planning than of so-called "adultery", which as you know I think is best left to each couple to define.
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[User Picture]From: kightp
2005-11-02 04:03 pm (UTC)
In the best of all possible worlds, people will talk to their partners about these things, children will talk to their parents and abortion will be safe, legal and rarely used. Hell, in the best of all possible worlds there would be no need to "legalize" abortion in the first place, as it would be considered a private medical procedure of no concern to anyone but the parties directly involved and their doctors.

But this is not the best of all possible worlds, and people's real lives are so complicated that women still need the weight of law to support what, in the end, must be their personal decisions about whether or when to bear children.

Sorry, but the situation of "women in trouble" pre-Roe is still very much alive in my memory. I fear we're heading back there, and it's clear that the most extreme anti-choice forces believe that too, or they wouldn't be wetting themselves in glee over this appointment.
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[User Picture]From: lblanchard
2005-11-02 05:37 pm (UTC)
I remember the "women in trouble" era as well, since it's one of the factors that made me so very cautious that I was on the pill for two months before I became, ummm, active.

I like the conversation between johnpalmer and nsingman going on elsewhere in this thread.
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[User Picture]From: kightp
2005-11-02 05:55 pm (UTC)
Yup, John and Noah are a great example of the possibility of civil discourse between people who disagree. (We are, too, I think, although I'm a little prickly on this particular subject and that tends to push me more toward the rhetorical than I usually am; sorry about that.)
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[User Picture]From: lblanchard
2005-11-02 09:56 pm (UTC)
Well, it's a fraught subject. No need to be sorry -- we were both direct and vigorous in laying out our views and I understand that we are far from eye to eye on this one, where the definition of "choice" can be so troublesome.
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[User Picture]From: nsingman
2005-11-05 10:33 pm (UTC)
We're actually screaming at each other in email, and exchanging naughty photos of our significant others. The pleasant exchange is just to throw Jez off the scent.

No, I'm just kidding. Thank you for the kind words, and you too, Jez. :-)
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[User Picture]From: blackthornglade
2005-11-07 06:35 pm (UTC)
As a product of the "woman in trouble" pre-Roe, it's pretty near and dear to my heart, too.

It's why I'm strongly pro-life in my *personal* life. It's also why I'm strongly pro-choice in my *political* stance, which confuses people to no end. So does the fact that I'm pro-life and was doing clinic escorts for a while.

I think, also, that we're right to be concerned that the anti-choice people are gleeful. It's a warning sign. However, I don't necessarily think that it's a slam dunk that he's anti Roe v Wade.

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[User Picture]From: karenkay
2005-11-02 03:36 am (UTC)
I'm not feeling well enough to argue the first point.

As for being against abortion and preferring that it remain legal, I accept that. I certainly don't think of myself as pro-abortion, but I do think of myself as pro-choice.
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