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Well, when it rains it pours, or should we consider this yet another chip in the fragile rights of women in the United States. Wisconsin universities have been targeted by a bill that would ban both emergency contraception in the form of Plan B, as well as counseling on emergency contraception at the advocacy of anti-choice groups such as Pro-Life Wisconsin. Despite The American College of Obstetricians and Gynecologists report and affirmation that Plan B is not an abortificant, the group claims to represent 20,000 Wisconsin families in their quest to prohibit 26 state campuses from prescribing Plan B, or counseling on Plan B.

“The morning-after pill kills tiny embryonic human beings and very much harms women,” said Peggy Hamill, state director of Pro-Life Wisconsin.

According to an article written up in the Minneapolis Star Tribune, pro-choice and family planning advocates have a distinctly different point of view.

“This is just basic, basic female health care, and it’s extremely disturbing … that women’s health is under attack here and at the national level,” said Tanya Atkinson, field manager for Planned Parenthood Advocates of Wisconsin.

The article then goes on to talk about more anti-choice plans that Wisconsin legislators have in the works, including a bill that would support pharmacists to deny Plan B based on moral grounds, as well as denying birth-control pills on moral grounds.

Sickeningly, and in some ways entertainingly enough, Republican legislators in Wisconsin are under the impression that university women in Wisconsin consider Plan B a new and exciting form of Skittles, with a zany and sometimes useful after-affect.

“I think it puts young women at great risk when they are told by medical professionals it’s just OK to take these emergency contraceptives at whim,” said state Rep. Jean Hundertmark, R-Clintonville, a co-sponsor of the bill. “It shouldn’t be taken like candy.”

The only potential silver lining to this rather dark and disgusting cloud is that while the Wisconsin House has approved the bill, and the Senate may pass it as well, Governor Jim Doyle has vowed to veto the bill when and if it came to his desk.

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From the New York Times:

The decision, by a three-judge panel of the United States Court of Appeals for the Eighth Circuit, in St. Louis, was the first that an appeals court has issued on the ban, which Congress approved in November 2003 with the strong backing of President Bush.

The ruling, written by Judge Kermit Edward Bye and joined by Judges James B. Loken and George G. Fagg, found the law unconstitutional because, while making an exception to the ban to protect the life of a pregnant woman, it made no such exception to preserve her health.

That an appeals court has now ruled on the matter moves the law one step closer to a likely review by the Supreme Court, perhaps in the coming term. In a rare point of agreement between adversaries in the abortion debate, advocates on both sides said the stakes had now been raised even further in Mr. Bush’s selection of a nominee to succeed Justice Sandra Day O’Connor.

The Eighth Circuit’s ruling rests heavily on a decision by the Supreme Court, which, in Stenberg v. Carhart five years ago, struck down such a ban that had been enacted by Nebraska. Before Justice O’Connor announced her retirement last week, the balance on the court in favor of a constitutional right to abortion was 6 to 3. But in Stenberg, the majority was only 5 to 4, with Justice Anthony M. Kennedy voting to sustain the state ban and Justice O’Connor’s vote making the majority.

(Related post from the archives: Judge Richard Kopf’s decision overturning the PBA ban, which the Eighth Circuit has now upheld.)

It’s scary to think that, probably, the Supreme Court will rule that women’s health does not matter.

And it’s impressive how successfully pro-lifers have manipulated this issue. The legal controversy is not, and never has been, whether or not “partial birth” abortion (whatever that means) can be banned. It can be. If the Republicans hadn’t obstructed it, a PBA ban would have become law years ago, and the Courts wouldn’t have objected.

The primary legal controversy about PBA bans is, does protecting women’s health matter? The Supreme Court, in Carhart, said “a State may promote but not endanger a woman’s health when it regulates the methods of abortion” and that “the absence of a health exception will place women at an unnecessary risk of tragic health consequences.” In other words, they ruled that women’s health matters.

Republicans passionately oppose the idea that women’s health matters, and therefore have blocked PBA bans that protected the mother’s health. I find their view barbaric.

Post away, you wonderful bastards and bastardettes!

This weekend “Alas” will be moving to its new host. To facilitate the move, I’m going to have to freeze comments starting Friday. (To be precise, I plan to turn off comments at midnight Pacific time, Thursday night). If all goes well, comments will be working again by Monday morning (maybe sooner), and our bandwidth problems will not reoccur.

Once again, if you’d like to contribute towards the costs of “Alas,” feel free to click on the screaming punk dude in the sidebar. Contributions go towards paying for the “Alas” server(s) bill, plus towards being able to tip the expert who’s helping moving the enormous “Alas” database of comments. Many thanks to everyone who’s already contributed; it’s really appreciated.

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In the current Willamette Week, Portland’s more mainstream “alternative” paper, there’s a story on four of the most abusive cops in Portland. Although the author didn’t make a point of this, what struck me is that three of the four committed abuses which had strong elements of misogyny.

Christopher LaFrenz: Bargoers said LaFrenz, then a four-year cop, called a man playing pool “pussy” and “vagina boy,” challenging him to fight for no apparent reason. Ordered to leave, LaFrenz’s group confronted the pool player outside at closing time. One of the group-possibly LaFrenz-head-butted the man, causing a golf-ball-sized swelling next to his eye. Bystanders broke it up, but when Hillsboro police investigated, LaFrenz hired a lawyer and refused to cooperate. Due to differing witness accounts, nobody was charged.

“Vagina boy?” What kind of thought process leads to using “vagina boy” as an insult? Sheesh.

David Golliday: Golliday’s drunken actions at a bawdy Halloween party attended by off-duty cops and prosecutors sparked a yearlong investigation in 2001. Another cop’s fiancée told investigators Golliday grabbed her breasts and reached under her skirt, and later sent cops to her home to pressure her not to complain. He was accused of grabbing at other women, too, as well as swearing at a female district attorney. [...] Golliday was demoted from sergeant but not charged.

A third cop profiled in the article, Joseph Hanousek, is best known in Portland for being caught on video pepper-spraying a female protector and seeming to laugh about it. He’s also been accused of helping prostitutes avoid arrest in exchange for sexual favors:

In 1996, due to a technical glitch, a ham-radio operator overheard Hanousek talking to a prostitute on his cell phone, and told police the cop seemed to be trading information about upcoming prostitution sweeps for the promise of fellatio.

I don’t doubt that there are many decent cops out there, but the profession also seems to attract some misogynistic, macho assholes.

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Le’ts face it: It’s not possible for Democrats in the Senate - not even if they’re 100% united, which they aren’t - to block a right-wing, anti-Roe Bush nomination to the Supreme Court.

My email and blog-reading lately has been stuffed full of calls to action - Call your senator! Donate! It’s time to get mobilized! From the LA Times:

Meanwhile, the liberal People for the American Way will “definitely be spending millions of dollars” if necessary to fight an objectionable nominee, vice president Elliot Mincberg said. The National Abortion Rights Action League transformed its website Friday so that visitors could donate time and money to a Supreme Court vacancy campaign.

I have to wonder - why? When it comes to who replaces O’Connor, we’ve already lost. The Republicans have a strong voting majority, and if necessary, they’ll use the “nuclear option” to prevent the Democrats from staging a successful filibuster. And if every single liberal in the country writes their senators, you know what? The Republicans will still have all the votes they need.

The Democrats have lost election after election after election, and when you lose that often you don’t get to choose Supreme Court justices. Nor do the Republicans have a politically realistic option of backing down; their base, so forgiving in so many ways, would never forgive a replacement for O’Connor whose opposition to Roe is less than total. Ed Kilgore has an accurate take on the situation:

This appointment represents the giant balloon payment at the end of the mortgage the GOP signed with the Cultural Right at least 25 years ago. Social conservatives have agreed over and over again to missed payments, refinancings, and in their view, generous terms, but the balance is finally due, and if Bush doesn’t pay up, they’ll foreclose their entire alliance with the Republican Party.

Sure, they care about other issues, from gay marriage to taxes to Iraq, but abortion is the issue that makes most Cultural Right activists get up in the morning and stuff envelopes and staff phone banks for the GOP. And for decades now, Republicans have told them they can’t do anything much about it until they can change the Supreme Court. With a pro-choice Justice stepping down, the subject can no longer be avoided. And thanks to the Souter precedent (and indeed, the O’Connor and Kennedy precedents), there’s no way Bush can finesse an appointment that’s anything less than a guaranteed vote to overturn Roe.

Some people may respond that I don’t appreciate how essential this might be. Look, I agree - it’s unbelievably essential. But just because it’s essential we win doesn’t mean we have the ability to win.

Let’s not fool ourselves - O’Connor’s replacement will be a loyal conservative, anti-Roe and predictably right-wing in all of her or his opinions. There is no way we can prevent this outcome. Knowing this, it’s hard for me to be enthusiastic about letter-writing or fund-raising based on trying to influence who replaces O’Connor. Wouldn’t it be better to reserve our energy for campaigns that aren’t completely, utterly hopeless?

P.S. Don’t take this as my saying that Roe is lost. Even with O’Connor’s vote replaced by a pro-life vote, there remains a 5-4 majority in favor of Roe (or, strictly speaking, in favor of Casey). People thought Roe was dead during Reagan, too - and that was about 20 years ago.

Links via Balloon Juice, which has an interesting list of quotes from conservatives, and Pressthink.

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NEW ADDITION TO THE CHEAT SHEET:
*Note, I’m adding a bit more on Cornyn with him being the new addition to the list, as well as rumors circulating of him being called into meetings with the administration, and a marked scurrying among his staff. It seems very likely that Cornyn will be the nominee, and that it will be announced on Tuesday. I grabbed some information on his voting record and political past from Issues2000 website as a starting point.

Well, the word around the Internet is that Chief Supreme Court Justice William H. Rehnquist will be retiring some time this week. Having a 33 year tenure in the Supreme Court, he began as an Associate Justice in 1971, and became Chief Justice in 1986. Rehnquist is said to be retiring due to his struggle with thyroid cancer that he has been battling for the past year which has left him weakened to the point that he is getting nourishment through a feeding tube after having gone through a tracheotomy procedure earlier this year. A long time adversary of the left, Rehnquist’s position as a radically conservative judge brings up the instantly heated debate over who will take his place.

The talk being bandied about is one of weighing political opportunity in conjunction with conservative ideologies. While it remains to be seen whether the attempt to gather both hispanic and fundamentalist votes will take precedent, the ’short list’ of speculated nominations has a variety in ethnicity and gender, but seems to lack variety when it comes to religious conservativism. No big surprise there.

There also has been floating rumors about the potential re-nomination of Antonin Scalia and Clarence Thomas, this time for Chief Justice. However, it seems unlikely due to age and also past controversies that would immediately come to the foreground.

So with this new development, and the likely controversy we will be seeing in the days to come, I’ve prepared a liberal cheat-sheet for people to peruse, use and abuse at their own discretion. While obviously there is far more information available than what I’ve posted, I’ve tried to focus on issues that I think liberals in particular will find enlightening, interesting and most definitely frightening with regards to the uncertain future of the Supreme Court.

John Cornyn
Current Position:
- Senator, Texas.

The Buzz:
- An ‘originalist’ that would supposedly be likely to reverse previous legislation from the bench (*Roe v. Wade being largely speculated on).

On Abortion:
- Voted YES on criminal penalty for harming unborn fetus during other crime. (Mar 2004)
- Voted YES on banning partial birth abortions except for maternal life. (Mar 2003)
- Rated 0% by NARAL, indicating a pro-life voting record. (Dec 2003)

On Business:
- 100% rating by the US COC which leads one to believe he’s very pro big-business.

On Education:
- Rated 27% by the National Education Association for support of many Bush Administration or similar policies.

On Environment:
- Drill in Alaska; oppose global warming treaties. (Jun 2002)
- Voted YES on Bush Administration Energy Policy. (Jul 2003)
- Voted NO on targeting 100,000 hydrogen-powered vehicles by 2010. (Jun 2003)
- Voted NO on removing consideration of drilling ANWR from budget bill. (Mar 2003)

On Crime:
- Involved in the controversial death penalty case of Calvin Burdine along with Jones, where the defendent’s attorney slept through portions of the trial.

On Family Law:
- Strengthen families by supporting marriage. (Jun 2002)
- Rated 100% by the Christian Coalition: a pro-family voting record. (Dec 2003)

On Health Care:
- Freedom from health care tyranny & more individual choice. (Jun 2002)
- Supports prescription drug coverage for seniors. (Jun 2002)
- Voted NO on $40 billion per year for limited Medicare prescription drug benefit. (Jun 2003)
- Rated 0% by APHA, indicating a anti-public health voting record. (Dec 2003)

John Roberts
Biography
Current Position:
- U.S. Court of Appeals - D.C.

The Buzz:
- Known conservative but considered a ’stealth candidate’.
- Former supreme court clerk under Rehnquist
- Under the former Bush Administration, he played an active role in efforts to limit abortion. Roberts argued in a brief before the U.S. Supreme Court that “[w]e continue to believe that Roe was wrongly decided and should be overruled.”
- Age 50

From Law.Com:
Yet those who know Roberts say he, unlike Souter, is a reliable conservative who can be counted on to undermine if not immediately overturn liberal landmarks like abortion rights and affirmative action. Indicators of his true stripes cited by friends include: clerking for Rehnquist, membership in the Federalist Society, laboring in the Ronald Reagan White House counsel’s office and at the Justice Department into the Bush years, working with Kenneth Starr among others, and even his lunchtime conversations at Hogan & Hartson. “He is as conservative as you can get,” one friend puts it. In short, Roberts may combine the stealth appeal of Souter with the unwavering ideology of Scalia and Thomas.

J. Michael Luttig
Current Position:
- 4th U.S. Circuit Court of Appeals
- Former clerk for Antonin Scalia

The Buzz:
- Texas native that worked in the Justice Department during the presidency of Bush, Sr.
- Caused a stir among legal ethics experts due to running the Clarence Thomas’s confirmation hearings after being confirmed himself to the 4th circuit court of appeals.
- Has some extremely conservative written opinions that could cause problems.
- Considered pro-life, and has been active in pushing the partial-birth abortion bans, and openly making it clear that he opposes abortion.
- Age 51

J Harvey Wilkinson III
Current Position:
- 4th U.S. Circuit Court of Appeals Chief Judge

The Buzz:
- Solid conservative record but also considered to be among those characterized as a ‘compassionate conservative’.
- Wrote the majority opinion upholding the right of the United States government to detain Yaser Esam Hamdi (US citizen detained during the invasion of Afghanistan) indefinitely without access to counsel or court. This was later overturned by the US Supreme Court.
- Wrote the majority opinion on Clinton’s “Don’t Ask, Don’t Tell” policy.
- Age 61

Michael McConnell
Current Position:
- 10th Circuit Court of Appeals
- Formerly professor at the University of Chicago and the University of Utah

The Buzz:
- Long and noteably conservative written record from his time in Academia.
- Religious right would support him due to what has been called “sharp opposition” to abortion rights.
- Very controversial positions and some approval from bi-partisan academics
- Speculated that the White House may consider him too independent and uncontrollable.
- Age 50

Emilio Miller Garza
Current Position:
- 5th U.S. Circuit Court of Appeals

The Buzz:
- Was considered by Bush, Sr. as a potential candidate during his presidency.
- Very vocal of opponent Roe v. Wade writing two very opinions in which he explicitly suggested it should be overturned.
- Considered to be a great political choice due to being hispanic and extremely conservative.
- Age 58

Alberto” title=”http://www.answers.com/Alberto%20Gonzales\”>Alberto”>www.answers.com/Alberto%20Gonzales”>Albe… Gonzalez
Current Position:
- Current Attorney General
- Long time Bush adviser
- Formerly on a Supreme Court Justice in Texas.

The Buzz:
- Considered the more moderate of the two hispanic considerations.
- Criticized for his memo’s regarding the Geneva Convention and the Gitmo detainees, advocating the US right to hold without counsel or charge, calling the provisions offered to the detainees “quaint”.
- Wrote a memorandum that argued laws prohibiting torture do “not apply to the president’s detention and interrogation of enemy combatants”.
- His writings are considered possibly contributing to the climate that allowed the Abu Ghraib abuses occur.
- Age 50

Samuel Alito, Jr.
Current Position:
- 3rd U.S. Circuit Court of Appeals in Philadelphia

The Buzz:
- Somewhat of an unknown, but nicknamed “Scalito” due to supposedly having views very similar to Scalia
- Upheld a Pennsylvania pro-life law that the Supreme Court overturned in Planned Parenthood v. Casey.
- Wrote an opinion in that case arguing for a standard that would permit virtually any restriction on abortion.
- Age 55

Larry Thompson
Current Position:
- He is general counsel at PepsiCo.
- Former deputy attorney general until he quit in 2003.

The Buzz:
- Bush administration’s highest-ranking black law enforcement official.
- Voted to uphold interstate abortion / parental notification laws.
- Considered somewhat moderate due to a few environmental issues.

Edith Jones
Current Position:
- 5th U.S. Circuit Court of Appeals
- Former general counsel for the Texas Republican Party.

The Buzz:
- Extremely outspoken opponent of Roe v. Wade, having referred to it as an “exercise of raw judicial power,” that needs to be re-examined.
- In cahoots with Norma McCorvey, the original plaintiff in Roe v. Wade, and then in 1995 announced she had become a born again Christian and pro-life activist.
- Criticized and protested for her decisions in the death penalty case of Calvin Burdine, in which it has been established that Burdine’s attorney slept through portions of his 1983 court case. Jones defended her decision with, “We cannot determine whether Cannon [Burdine's attorney, now deceased] slept during a ‘critical stage’ of Burdine’s trial.”
- Age 56

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Edward at Obsidian Wings quotes Spanish Prime Minister Zapatero:

“We were not the first, but I am sure we will not be the last. After us will come many other countries, driven, ladies and gentlemen, by two unstoppable forces: freedom and equality.”

I’d really like to see anti-SSM folks put their money where their mouth is by saying, for the record, what measurable empirical harms they expect will happen in Spain, Canada and Massachusetts, that would not have been expected from already existing trends. If they’re not willing to do that, then I don’t see any reason to think they have any intellectual integrity at all.

From the AP story:

[Spain's] 350-seat Congress of Deputies, by a vote of 187-147 with four abstentions, approved the measure to give homosexual couples the same rights as heterosexual ones, including the right to adopt children.

After the tally was announced, activists watching from the spectator section of the ornate chamber cried, cheered, hugged each other, waved to lawmakers and blew them kisses. [...]

The bill, which became law immediately, says: “Matrimony shall have the same requirements and effects regardless of whether the persons involved are of the same or different sex.”

Gay couples can get married as soon as the law is published in the official government registry … as early as Friday or within two weeks at the latest, parliament’s press office said.

The Netherlands and Belgium are the only other two countries that recognize gay marriage nationwide. The Netherlands lets gays adopt children. Belgium is considering the adoption issue.

Canada’s House of Commons passed legislation Tuesday that would legalize gay marriage by the end of July as long as the Senate also passes the bill, which it is expected to do.

In the United States, Massachusetts is the only state to recognize gay marriage.

And then there were five…

After last week’s buzz about Rehnquist’s possible retirement, today has brought an interesting new development. While it has been widely known that Justice Sandra Day O’Connor has made it clear she intended to retire prior to 2008, and likely prior to December of this year, she has apparently handed in her resignation to the White House this morning:

Supreme Court Justice Sandra Day O’Connor, the first woman to serve on the high court and the key swing vote in some of the nation’s highest-profile cases, announced her resignation Friday.
In a letter to the White House, the moderate conservative, said she will step down when her successor is confirmed.

Appointed by President Ronald Reagan in 1981, she is now retiring at age 75. O’Connor was the first woman US Supreme Court Justice and while a staunch Republican supporter, has been considered among the moderate’s of the Republican camp. As one of the 6-3 majority in most pro-choice issues, the news comes as a shattering blow to women’s rights, the likelihood of a nominee that is absolutely anti-choice extremely likely, if not an absolute. In a related post, the potential nominee’s were discussed last week when the speculation over Rehnquist’s retirement was occurring.

Perhaps the most ominous words that loom on the horizon are the words of President Bush, himself who said this with regards to his nomination considerations:

On Friday, Bush said he is looking for candidates “who meet a high standard of legal ability, judgment and integrity, and who will faithfully interpret the Constitution and laws of our country.” [emphasis mine]

At any rate, there goes the neighborhood folks. Welcome to the Big Top, circa 2005.

First woman to serve as US supreme court justice retires

Justice Sandra Day O’Connor, the first woman appointed to the United States’ supreme court, today announced her retirement, paving the way for an ideological battle over her successor.

In the divided supreme court, Ms Justice O’Connor was a crucial figure who often cast the deciding vote on contentious issues such as abortion. Her appointment in 1981, by the then president Ronald Reagan, ended 191 years of male exclusivity in the high court.

I’m going to use this post to post interesting quotes from around the Blogosphere, so I’ll be updating it as I browse.

From Orin Kerr of the Volokh Conspiracy (and via Dispatches from the Culture Wars):

9. O’Connor’s retirement may shift the Court a lot less than people think. In the big ideological cases of the last Term, Justice Kennedy was the swing vote as often as (or maybe even more often than) Justice O’Connor. Let’s assume for now that O’Connor is replaced by a consistently more conservative Justice; even if that’s true, the left-of-center Justices presumably still have 4 very reliable votes and a good shot at picking up a 5th vote with Kennedy. Plus, new Justices are hard to predict, and it’s often hard to tell whether a new Justice will vote consistently one way or another.

10. We’re likely to hear a lot about the future of Roe v. Wade in coming weeks and months. The common wisdom, assuming no shifts in votes from past cases, is that the 8 remaining Justices include 5 votes for Roe (RBG, SGB, DHS, JPS, AMK) and 3 against (AS, CT, WHR). On the constitutionality of partial-birth abortion bans, the common wisdom is that the 8 remaining Justices split 4 to 4, with Justice Kennedy switching as seen by his vote in Stenberg v. Carhart.

* * *

Marty Lederman at SCOTUSblog is putting together a list of important decisions in which O’Connor was the swing vote.

* * *

Bitch, PhD writes:

I predict the death of Roe V. Wade.

Sandra Day O’Connor just announced her retirement. And Rehnquist is dying.

There goes our 5-4 lead.

Actually, Roe has a 6-3 lead. So Roe is safe for now, unless at least one more of the six anti-Roe votes retires. Rehnquist is firmly anti-Roe, so replacing him with another Justice can’t hurt Roe.

However, O’Connor was the swing vote on “Partial Birth” abortion, so there’s a good chance that pro-lifers are finally going to be able to get through a PBA ban that has no provision to protect the woman’s health.

* * *

From Project Nothing:

IF YOU’RE NOT WATCHING CABLE NEWS - It’s basically playing out like you’d expect. Republicans are already painting Democrats as obstructionists by saying “not letting the president have his nominees”? confirmed is a “fundamental misunderstanding of democracy”? and the Democrats are screaming for a moderate which is, like I said, someone who will not overturn Roe v. Wade.

* * *

From Jesse at Pandagon:

Some are saying that we should draft Prado, however, I just support replacing the entire court with Galactus, who is not only truly impartial, but also reserves the right to eat all of us should the mood strike.

* * *

From Nathan Newman:

The trap for progressives on the nominations fight for O’Connor’s successor is just to talk about abortion and other social issues. We need to split social conservatives away from their corporate allies and highlight the rightwing ECONOMIC views of potential nominees.

The Supreme Court is the interpreter of legislative statutes and they can either enforce them strongly on behalf of the rights of middle class families or they can give corporations a free pass to loot pensions, poison the environment and violate their employees rights at work.

We need to wedge the opposition base and, even if some Bush supporters cheer an anti-choice nominee, we should raise questions with them about why that nominee also screws workers in all their legal decisions and never really punish corporations for their wrongdoing.

* * *

From Mark Graber on Balkinization:

Justice O’Connor’s resignation today raises interesting questions about her political identification. If one reads many far-right wing sites, O’Connor was a liberal, barely distinguishable from Justice Ginsburg, if not Jesse Jackson. Yet, if the rumors of her comments when Gore was thought the victor of the 2000 election are correct, and there is some truth to claims that Justices try to time resignations, Justice O’Connor clearly preferred that Bush appoint her successor than Gore. Apparently, her efforts to push the court to the right on such matters as federalism and takings were far more important to her than the occasional vote to overturn a particularly eggregious death sentence and the privacy cases.

The most interesting question now is whether the Bush administration will try to defend its version of judicial activism or, more typically, deny that the administration has any agenda other than vague strict construction. At least Democrats openly admit the forms of judicial activism they favor.

* * *

LiberalOasis has a good post on fighting Bush’s nomination (assuming that nomination is unacceptable from a lefty point of view - which seems like a safe assumption).

Bush V. Choice has a collection of “What you can do” links.

* * *

From Ezra Klien:

So here’s a question: can we actually block anyone that Bush wants? The last heroic victory was the rejection of Robert Bork, and that was pulled off by a 55-45 Democratic majority. I guess we can filibuster, at least assuming the nuclear option can be blocked, but what, realistically speaking, is the plan here? Make a judgment call, shut down the Senate over Luttig, and hope we win the aftermath? With party loyalty as strong as it is in this era — even Janice Rogers Brown got confirmed, contrary to Graham’s predictions that she wouldn’t — do Democrats have any possible chance of winning this without a filibuster?

And from “Jim” in Ezra’s comments:

The best the Dems can do is to conduct a spirited information campaign. We should fight a bad candidate, but any Bush choice is unlikely to be centrist like O’Conner. Only if the nominee is as bad as Janice Rodgers Brown should the Dems conduct a filibuster, since we will be labelled as obstructionists by the media - with a unified GOP attack and distortion machine behind them.

This does not mean rolling over for Bush, or voting for a bad nominee. United Dem party opposition is even more important if you are going to lose since making the electoral choices for the future depends on CHOICE - we must be an alternative.

Many soft Dems will vote with Bush once they know the Dems can’t prevail. That is one of the principal reasons the party is weak.

* * *

Scott at Lawyers Guns and Money concurs that O’Connor’s retirement doesn’t mean that Roe is doomed - but it’s certainly cause for concern.

Having said that, this is not to say that O’Connor’s replacement doesn’t matter for abortion right–far from it. First of all, it means that the “partial birth abortion” ban passed by Congress will almost certainly be upheld, something that has all kinds of potential for mischief. It also means that the chances of abortion regulation meeting the “undue burden” test has become greater. And, of course, even if the effect of replacing O’Connor is to make the vote for upholding Casey 5-4 rather than 6-3, that’s obviously not trivial. John Paul Stevens is 85. Ruth Bader Ginsburg is 72 and has had cancer. As today’s announcement reminds us, Supreme Court resignations are unpredictable; we could easily see a dam burst, as happened in the 30s, and we don’t know who will be in the White House in 2008. So, no matter what Kennedy’s current views are, O’Connor’s resignation and replacement matter a great deal for reproductive freedom.

…MJD brings up another point in the comments below. I do think that overturning Roe would not, on balance, be good for the Republican Party. My guess, though, is that this doesn’t really matter to Bush. If he’s willing to make social security privitization the domestic centerpiece of his second term, he’s certainly going to be willing to appoint an anti-Roe justice to replace O’Connor. Everything about the lead-up suggests that Bush wants the most conservative justice he can get through the Senate.

* * *

Regarding O’Connor’s legacy, Scott quotes Jeffrey Rosen from The New Republic in 2000 to good effect:

And, by not even bothering to cloak their willfulness in legal arguments intelligible to people of good faith who do not share their views, these four vain men and one vain woman have not only cast a cloud over the presidency of George W. Bush. They have, far more importantly, made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O’Connor [...]

The unsigned per curiam opinion in Bush v. Gore is a shabby piece of work. Although the justices who handed the election to Bush–O’Connor and Kennedy– were afraid to sign their names, the opinion unmasks them more nakedly than any TV camera ever could. To understand the weakness of the conservatives’ constitutional argument, you need only restate it: Its various strands collapse on themselves. And, because their argument is tailor-made for this occasion, the conservatives can point to no cases that directly support it. As Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer wrote in their joint dissent, this “can only lend credence to the most cynical appraisal of the work of judges throughout the land.”

The most important part of O’Connor’s legacy is that, when push came to shove, she was a traitor to Democracy in order to protect a Conservative candidate.

* * *

A point that came up when I was talking to my mother (hi, Mom!):

As my mom argued, I think persuasively, it’s good that O’Connor retired first. There was no chance she wasn’t going to retire, and there will be more energy in the Democrats for the first nomination fight than for subsequent nomination fights. It’s in our favor that Rehnquist wasn’t the first to go.

On the other hand, I’m still pretty pessimistic overall. Even if the Democrats are united, I don’t think they’ll be able to block a right-wing replacement for O’Connor - the “nuclear option” guarantees that the Republicans, if they stick together, will win.