Spectacularly Wrong

alexv · Post by **alexv** » Wed Jan 11, 2006 6:02 pm

Another candidate for the US Supreme Court is undergoing Senate questioning, and today an exchange occurred which amazes me and might be interesting to the group that loves to discuss crap like this.

The crux of it concerns abortion and Roe v. Wade. The proponents of abortion on the Committee have tried to get the candidate to admit that he will abide by "settled precedent" (a basic theory of judging under our common law), since Roe has been precedent for many years now, and he has said that "generally" precedent should be followed. Harmless so far.

But one of the abortion foes on the Committee tried to show that sometimes "settled precedents" should be overturned, and brought up the long period during which Plessy v. Ferguson (the case that established separate but equal law in connection with blacks in the US, and which was overturned in the 50s) was also "settled precedent".

Alito, the candidate for the Court, when asked by the Senator whether that particular precedent---Plessy's--- was wrong, said that it was "spectacularly wrong". The Senator then referenced Roe and scornfully said "settled precedent". The implication was that since Plessy was settled precedent, and turned out to be wrong, then Roe, even if settled precedent, could also be overturned, if deemed to be wrong. In other words, both decisions could be, in the end, spectacularly wrong.

Now, I am personally in favor of a woman's right to an abortion under the rules currently in place in the US, but fully understand that for many reasons, reasonable people may take the opposite view. To a religious person, for example, the arguments from science mean nothing, and vice versa.

But to equate Plessy with Roe as equally questionable decisions is downright despicable. You can indeed argue that for many years, in connection with both decisions, each precedent was violently opposed by approximately half our country (assume that during the pre-50s years the North counted as half; and that since Roe about 50% of Americans oppose Roe).

But what was the precedent that was being opposed? In Plessy, only people blinded by racism, or by a culture (primarily southern culture) which for years carried on race relations which were in irreparable conflict with 20th and 21st Century practices could support separate but equal. Their beliefs may have been deeply felt and rooted in their past, but those beliefs and that past were in direct conflict with the present, everyone's present, and the future. Plessy had to be overturned. Its existence today would be inconceivable.

In Roe, the opponents of the decision, no matter how strongly they feel about the right to life, cannot justly accuse the supporters of abortion of beliefs that are in conflict with 21st Century views. They may argue that they are misguided, but there are reasonable responses from the other side. Reasonable people can disagree about Roe; reasonable people could never, in the 1950s, support Plessy. Surely, some did, but they were on the wrong side of history.

The only way I can imagine a similar fate for Roe supporters is a future discovery that foetal life was far earlier than science assumed. But even there, the wrongness of the decision was founded on incorrect science, on incorrect facts. The spectacular wrongness of Plessy was based on outmoded racial practices. Two very different things. The people who support Roe, whatever may be said of them, cannot be said to be on the wrong side of history.

verena · Post by **verena** » Wed Jan 11, 2006 6:59 pm

Since a settled precedent can be overturned I am not sure if that was a great line of questioning...

Alexev, I suppose that the Senate has procedural rules about this kind of hearing. Does the Committee have the right to ask Alito direct questions such as if he agrees with "Roe vs Wade", or what his personal principles and beliefs are with respect to abortion (or other relevant subject matters) ?

Mr. Average · Post by **Mr. Average** » Wed Jan 11, 2006 8:57 pm

I believe that there is only One Master of Life and Death. Only One. I also completely understand why people support abortion, and how science can be used to argue its legality.

I also believe that a demented pedophile can be rehabilitated and serve society at the highest levels. Although the evidence-base suggests that "once a pedophile, the predisposition is always there to return to such heinous behaviors.

Differences of opinion and the passionate discussions they create are what makes the world go round. It's what makes life enjoyable. Unfortunately for those who are out of the mainstream consensus of this forum, and those that hold views that are diametrically oppossed to the conventional wisdom of the board, different opinions are not tolerated. Holders of divergent opinions are scorned, ridiculed, and literally ostracized. That, too, is spectaculary wrong...but not altogether unexpected.

Mr. "Wanker of the Year" Average

PS. Alexv, in this and other recent threads you have posted some very thoughtful comments. I enjoy reading your thoughts. Apologies if my compliment becomes the "kiss of death" fodder for more pee-pee-caa-caa namecalling by the really smart guys here.

alexv · Post by **alexv** » Thu Jan 12, 2006 12:28 pm

Verena, the Committee rules give wide latitude to the Senators in asking questions. They can ask about anything. In recent years, the nominations to the Supreme Court have become very important events in the US, much more so than in the past. I would say the new way of doing things started with a nominne named Bork who was a lightning rod for the liberals in the US (rightfully so, the man is brilliant but very conservative). Since then, every nomination has become a battle and the Senators feel they have to perform. By contrast, the successful nominees are the ones that frame their answers in such a way that they DON'T give a clue as to what their position is on the hot-button cases (Roe, affirmative action, and now Executive Privilege). So, it's a cat and mouse game where the Senators are aided by all kinds of public interest groups that are interested in either supporting or blocking the nomination. Makes for great TV (if you're into that sort of thing) but I'm not sure it serves the process very well. Just so you know, the record for both this nominee and the last one (he was appointed Chief Justice) is such that you have to conclude that they would NOT be supporters of affirmative action or Roe. But in the past, justices have turned out to be very different once on the Court than in their prior lives. There is something about the Court (the highest and best government institution in our country, in my opinion) that makes certain (not all) judges strive to act solely from principle.

Mr. A: Thanks for the compliment. No need to be defensive.

Mr. Average · Post by **Mr. Average** » Thu Jan 12, 2006 8:48 pm

As a matter of fact, there is a need to be defensive.

noiseradio · Post by **noiseradio** » Thu Jan 12, 2006 9:25 pm

The hearings strike me as ludicrous. Not just these, but all of them since at least Bork. If the goal for the nominee is to get the job, the only way he or she can do so in a closely divided Senate is by pretending not to have opinions everyone knows good and well that they have. And what's the big surprise if bush appoints conservatives? Whas anyone expecting anything less? He ran twice promising to appoint conservatives. The only surprising thing would be if Alito and Roberts turned out to actually be undecided on issues like Roe. Clinton appointed Ginsburg. Did anyone doubt she would be to the left on issues? It's childish to pretend otherwise.

If the Senators want to make a big show for their contributors and their party base, they should simply debate the merits of the nominees on the Senate floor, based on their track record. The dog and pony show adds nothing of merit to the discourse.

bobster · Post by **bobster** » Fri Jan 13, 2006 2:17 am

I sort of agree with you, Noise, but what a lot of people aren't getting is that, in this particular go-round, abortion/Roe V. Wade is actually one of the least important issues. The

IMO, by far the most worrisome/important aspect about what appears to be an attempt to greatly increase the powers of the Presidency. If, in fact, the President can now sign a law but simply write out and understanding of the law which might be completely opposite to the original meaning, then that sets the stage for what could effectively become a dictatorship. That, my friends, is as serious as you can get.

This is not a partisan issue -- or it shouldn't be. If really doesn't matter who is happens to be President at a given moment, the prospect of giving any President that much power is too damn frigthening to contenance.

noiseradio · Post by **noiseradio** » Fri Jan 13, 2006 12:31 pm

Actually, I fully agree with you about the issues that are the most important. I'm just saying the hearings don't illuminate anything. Alito's stance on presidential power is no more surprising than his stance on Roe. It would only be surprising if Alito was against expanding the power of the president. I'm not saying this shouldn't be debated by the Senate. I'm just saying it's a farce to do so in a "hearing" setting that reveals nothing. They should be debating his record on the Senate floor, not asking him softball questions he won't answer. It's not the purported goals of the hearings I don't like, it's the actual execution of the hearings that seems fruitless to me.

verena · Post by **verena** » Fri Jan 13, 2006 2:11 pm

Yeah, life is full of farces. Let's see how long this one will last...

Thank you very much Alexev for your answer, this is exactly what I wanted to know.

noiseradio · Post by **noiseradio** » Fri Jan 13, 2006 3:48 pm

verena wrote:Yeah, life is full of farces. Let's see how long this one will last...

November of 2008 at least....

El Vez · Post by **El Vez** » Fri Jan 13, 2006 4:19 pm

The hearings kinda remind me a little of Mastergate, a very funny little Larry Gelbart movie from the early 90's. "We want to determine what exactly the President knew and if he was aware that he knew about it."

alexv · Post by **alexv** » Fri Jan 13, 2006 5:58 pm

My favorite bits of the "farce" (a good characterization by the way): The Senators:

Biden: this man is a fool who carries to this day a huge chip on his shoulder about his lack of education (I think that like Kennedy he basically cheated his way through law school). His intellectual insecurity of course sends him off on long winded questions accompanied by his perpetual politician's smile. Since he is an idiot, no matter how good a question his clerks (they are smart) have put together for him, any evasive answer from a smart candidate (Alito and all these guys are smart) leaves him in Homer Simpson land. He had his daughter along for the ride this week and she was obsessing over her pony tail while he spoke.

The Southern Conservative Republicans: I can't quite tell these guys apart, but they are a scream. They look like they stepped out of a 1950s sit com with southern accents. Wound tighter than humanly possible. They are walking advertisements for atheism.

Kennedy: Falstaff, without the good will and Hal. So liberal, so gooood, and such a waste.

Specter: Now this guy is smart and a damn good lawyer. If a Democrat, he'd be on the Court today, but he's on the wrong side. I always liked him but his attempted lynching of Anita Hill (who I thought was telling the truth, but too long after the fact for it to be sincere) was disgusting and unforgivable.

Orrin Hatch: Best friends with Teddy. From another planet.

Schumer: I went to school with his brother. Not an honest bone in his body. This guy, the senator, is the most craven political creature of the bunch. If you saw him in a restaurant and just glanced in his direction, within a week you would be receiving personal letters from him on how BEST he could serve your interests.

Best bit of fake drama: Mrs. Alito's tear stained flight from the proceedings once the Senators took off the gloves. I wonder who choreographed that. This woman is a seasoned lawyer. Tears, just because your hubby is being grilled, with words? Give me a break. My wife, who is not a lawyer, would be making sure the TIVO was working so that she could play the thing to our friends.