Faith & Social Justice: In the spirit of Richard Overton and the 17th C. Levellers

A Brief Note on Abortion Discussions

I am tired of every subject on this blog being compared to abortion.  Seamless Garment folks believe that all life issues should be judged the same.  I respect this view and once held it, but have already noted why I think that the differences between abortion, war, the death penalty, euthanasia, etc. are at least as important as the similarities.  My core conviction is not “life” but human personhood.  You may disagree with that.

But I am tired of every subject, from war to torture, etc. being used by some commenters to try to turn things back to a discussion of abortion.  Quit it. If it keeps up, I will start banning those engaging in this tactic. 

I may be wrong in my reluctantly and narrowly pro-choice position.  But you will not convince me by trying to bring it up at every opportunity.  Instead, all you will do is make me unwilling to engage you on ANY subject.  That’s what “one-note-charlie” folks don’t seem to understand.  You lose more people than you gain by such tactics. 

Even when I considered myself a seamless garment person, I did not consider abortion to be THE issue that overrides all others.  I did not and do not agree with picking judges and SCOTUS justices based on the likelihood that they will or will not overturn <i>Roe v. Wade</i> because of my experience that most judges who oppose <i>Roe</i> also have far right views on numerous other legal matters–and they are rightwing judicial activists who attempt to turn back the legal clock on numerous matters.  So, when I did oppose <i>Roe</i>, I believed that it should be overturned not by stacking the SCOTUS with far-right ideologues like the late Chief Justice Renquist (a racist who believed that <i>Brown v. Board of Education</i> had been wrongly decided), and justices Scalia, Alito, Thomas, and Chief Justice Roberts (who clearly lied in his senate testimony), but by amending the Constitution.  That would ban abortion while not radically disturbing 50+ years of legal precedent.

I also am increasingly of the opinion that the Republican ESTABLISHMENT (as opposed to the GOP grassroots) is not really interested in banning abortion.  They just want to raise money on the issue and use the issue as a wedge in campaigns.  From 2001 to 2006, the GOP controlled all 3 branches of the U.S. government, but made ZERO efforts to overturn <i>Roe v. Wade</i>.

Just as Democrats knew that  any justice nominated by Pres. Bush would be conservative and pro-life and could only work to try to get the best nominee possible  within such a framework, so Republicans HAD to know that Obama would appoint a pro-choice justice for SCOTUS.  It was a foregone conclusion.   It also does not change the dynamics of the court on this issue.  You still  have four (4) strong justices against abortion (Roberts, Scalia, Thomas, Alito) and four (4) strong  justices for upholding <i>Roe v. Wade</i> (Ginsburg, Breyer, Stevens, and Sotomayor) and one swing vote (Kennedy) who is more conservative than liberal.  With a good case, anti-abortion choice folks could now, just as for the last 9 years, overturn <i>Roe v. Wade</i> on a 5-4 ruling.  So, why aren’t they trying?  Sotomayor’s nomination changes nothing in this regard.  (Nor is any Obama nomination in this 4 year term likely to do so since the other justices who might retire this term, Stevens & Ginsburg, are already on the liberal side.  Only if one of the conservative justices retire–and they are relatively young and most in good health–is any Obama pick going to make ANY difference on <i>Roe v. Wade</i>.  That would NOT have been the case if John McCain had won last November, however.   My guess is that no conservative justice will retire until 2012 at the earliest and then it is likely to be either Kennedy, the eldest of the conservatives, or Thomas, who simply does not look in good health and who does not seem to like the work anymore.  )

P.S.  Regarding Judge Sotomayor, it is probably pro-choicers who should ask more questions at her hearing.  She has ruled on only 1 case regarding abortion (Center for Reproductive Policy v. Bush 2002)  and, in it, she UPHELD the Bush-era “Mexico City Rule” that refused government funding to international relief and aid groups that funded abortions.  Judge Sotomayor ruled that this policy did not violate the constitution’s equal protection clause because “the government is free to favor the anti-abortion position over the pro-choice position and can do so with public funds.”  This is hardly a ruling that would thrill members of the National Abortion Rights Action League or the ACLU’s section on reproductive choice.  One ruling does not show an overall attitude toward abortion, but it shows that anti-abortion groups have more reason to be cautiously optimistic about this nominee than do pro-choice groups.

May 26, 2009 Posted by | abortion | 11 Comments

Obama Nominates Judge Sonia Sotomayor to SCOTUS

SotommayorWell, I was wrong.  The conventional wisdom said that Obama would pick a Latina, adding another woman and the first Hispanic to the Supreme Court of the U.S. in one fell swoop–and the only person fitting such a description that also had the legal qualifications and experience was Judge Sonia Sotomayor of the 2nd Circuit of the U.S. Court of Appeals.  So, she was widely rumored as a frontrunner and the right actually began a whisper campaign against her the moment that Justice David Souter announced his retirement at the end of this term of the Supreme Court–before anyone was nominated.


But I was convinced that Judge Sotomayor was too obvious a choice.  Obama has picked surprising people to fill his cabinet posts (people are STILL surprised that he picked his arch-rival Hillary Clinton to become Secretary of State!) and, althought he has sought major diversity, has never picked just to have an affirmative action choice.  I thought he certainly wanted someone who was NOT an appellate judge, but a working politician.  So, I thought Gov. Jennifer Granholm (D-MI) of Michigan had  the inside track.  Also, despite the screams of the right, Judge Sotomayor is fairly centrist–not much more liberal  than Justice Souter whom she’d be replacing, and so I thought Obama would save her for replacing a conservative–that he would pick a strong liberal to replace Souter.

I was wrong.  Judge Sotomayor is the nominee. Obama wants her confirmed before the August recess of Congress, so that she will be ready to go when the SCOTUS begins its fall term on the first Monday in October.  I think the GOP will try to drag it out to September, but I don’t think they have the votes to block her confirmation.  She was nominated first for the federal bench by Pres. George H. W. Bush and then elevated to the 2nd Circuit Court of Appeals by Pres. Bill Clinton. So, Judge Sotomayor has twice been confirmed by the senate already.  Seven (7) Republican senators voted for her confirmation in ’97.  So, it will be hard to keep her off the Supreme Court.  But the Right is already trying.  The confirmation hearings will be nasty.

My one real concern is that with Sotomayor, 6 of the 9 SCOTUS justices will be Catholic.  The remaining 3 will be two Jews and one Protestant (John Paul Stevens, the oldest Justice serving).  In a country where Protestants are still a plurality, if no longer a strict majority, this is a very Catholic-dominated court.  There are 11 Catholics who have been on the SCOTUS in U.S. history–and 5 of those 11 are still serving.  This worries me some on church-state issues where Catholics have tended to support positions that I would consider violations of the 1st Amendment’s ban on all laws “respecting an establishment of religion.”  I haven’t seen an analysis of Judge Sotomayor’s church–state decisions but would like to do so. 

Obama is likely to have 1-2 more Supreme Court picks this term and, if he is reelected, at least 1 more pick in his 2nd term.  I hope the others are more liberal and are not Catholic.

Bio:  Judge Sonia  Sotomayor is 54.  Her parents came from Puerto Rico during WWII and both were working class people.  She grew up in the Bronx, NY and first became interested in the law as a girl reading “Nancy Drew” mysteries.  When she was diagnosed with childhood onset diabetes at age 8, she was told that diabetics did not have the physical stamina to become police officers or private investigators (not true). So, she became a judge.  She graduated from Princeton University in 1976 summa cum laude.  (So much for those who claim she is not intelligent!) She then graduated from Yale University Law School in 1979 after serving as editor of the Yale Law Review.  She has been a NYC prosecutor and a civil litigator for international corporations operating in the U.S.  She has been a trial judge and, when replacing Souter, will be the only member of SCOTUS who has served as a trial judge.  She has been a state appellate judge (appointed in 1991 by Pres. George H.W. Bush) and a Circuit Court appellate judge (appointed in 1997 by Pres. Bill Clinton).  Her name was previously floated as a replacement for Justice Sandra Day O’Conner when she retired from SCOTUS in ‘ 05.

This article shows convincingly that, although the rightwing noise machine will complain loudly about her nomination, they don’t have the votes to prevent her from being confirmed (or even to filibuster her nomination) –unless a major scandal would be uncovered (highly unlikely).  And Republican Senators like Mitch McConnell are on record as opposing the filibustering of judicial nominees–calling it obstructionist.  This won’t prevent them from reversing themselves now, but we can show them to be absolute hypocrites when they do reverse themselves.

Update:  The Senate Judiciary Committee  has just released its questionaire for Judge Sotomayor.  After she has filled it out, they will release her answers.  I indicated my questions for any replacement for Souter here.

May 26, 2009 Posted by | church-state separation, courts, judges, judicial philosophy, law | 24 Comments

Supreme Injustice in CA: Prop 8 Upheld

As expected (and dreaded by GLBT folks and allies), the California Supreme Court rejected arguments that ballot initiative “Proposition 8” passed last Nov. was more than an amendement, but a revision of the California Constitution.  If that argument had prevailed, Prop. 8., which bans same-sex marriage, would have been struck down since revisions cannot be made by ballot initiative alone, but must go through the state legislature.  The CA Supreme Court Judges, even those voting originally that the state constitution guaranteed marital equality, had indicated back in January during oral arguments that they were not open to the “revision” vs. “amendment” distinction.  The really bad news is that they relied on the argument of Prop. 8 litigator Ken Starr (of Monica-gate infamy!) that because the rights of convicted felons to vote can be stripped, so also can previously recognized rights of gay and lesbians be stripped from them.  Great. In effect, the court has just criminalized gayness.

However, the justices also ruled that the 18,000 same-sex marriages that took place in CA during the few short months of its legality (May-Nov. 2008) would remain valid.  As a gay friend (a pastor and fellow member of the Baptist Peace Fellowship) from CA emailed me:  This now creates a system in which some 18,000 gay couples in CA are in a situation analogous to that of free blacks in slave states before the U.S. Civil War–having rights denied to others “of their kind.”

This is not the last word.  Prop 8. supporters will work to get the marriages undone, too.  But  polling since last Nov. shows that Prop. 8 would probably fail (narrowly) if it were re-voted.   Marriage equality has gained ground since last Nov.  So, supporters of marriage equality will seek to undo Prop. 8 legislatively.  I think they will succeed, but if this is to stop going back and forth, I think CA may need a major constitutional overhaul which strengthens equal protections and makes it harder to strip rights from people.

This is one of the enduring tensions in the American form of government:  a democratic republic ordinarily means “majority rule.”  But the Framers of the Constitution also sought to protect the rights of minorities–to defend human rights and civil liberties against “majorities of the moment,” and “mob rule.”  Who and what is protected has been a debate for nearly 200 years, now.

May 26, 2009 Posted by | civil liberties, courts, democracy, GLBT issues, homosexuality, human rights., Uncategorized | 2 Comments